American and British claims arbitration. The 'Favourite ......AnsweroftheUnitedStates. 3 ernmeutwouldstillbeliableforthedetentionoftheFa- vouritefromandafterAugust27,1894,thedatethevessel

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FRIENDS OF HIE LIIiRARY

donor

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AMERICAN AND BRITISHCLAIMS ARBITRATION.

THE "FAVOURITE'

ANSWER OF THE UNITED STATES.

AMERICAN AND BRITISH CLAIMS ARBITRATION.

The Favourite.

Answer of the United States.

The United States, in answering the memorial of His

Britannic Majesty's Government in support of the claim

entitled ''The Favourite,^ ^ admits the following facts:

That the Favourite was a schooner of British register,

registered at Victoria, British Columbia, on June 18, 1868,

and was engaged in sealing in Bering Sea on and after Au-

gust 1, 1894, under a special sealing license issued by the

Collector of Customs at Victoria; that the regulations in-

cluded in the award of the Bering Sea Tribunal of 1893

were adopted and put into operation as to British vessels by

the British "Behring Sea Award Act, 1894," passed April

23, 1894, by the British "Behring Sea Award Order in

Council, 1894," issued April 30, 1894, and by the diplomatic

arrangement between the governments of the United States

and of Her late Britannic Majesty entered into on May 11,

1894; that on August 24, 1894, the Favourite was boarded

by an officer of the IT. S. S. Mohican, one of the patrolling

squadron in Ber-ing Sea, who found on board an unsealed

firearm; that tlie commanding officer of the Mohican, pur-

suant to the authority conferred upon him by the Behring

Sea Award Act and Order in Council, seized the Favourite

and sent her in custody of Midshipman A. A. Pratt and a

prize crew to Unalaska, with orders to re]iort to H. M. S.

Pheasant; that the commander of the Pheasant ordered

1-Fav.

2 'The Favountc.

the Favourite to report to the Collector of Ciistonis at Vic-

toria, B. C. ; that the Favountv ai-rivcd at Victoria on So])-

tember 15, 1894, and was forthwith released from custody

by Rear Admiral II. b\ C. Stevenson, stationed at Esqui-

manlt, B. C, without any judicial proceedings being had.

The United States denies any and all liability in this case

for the following reasons:

I. The oflficer of the U. S. S. Moltlciui, in seizing the Fa-

vourite, acted nndei- and by virtue of the authority con-

ferred upon him by the "Behring Sea iVward Act, 1894,"

and the "Behring Sea Award Order in Council, 1894," and

in making the seizure the officer in cammand of the Mo-

hican was acting on behalf of Her Majesty the Queen, and

not on behalf of the United States.

II. The seizure was made in the bona fide belief that the

"Behring Sea Award Act, 1894," had been violated. Under

the provisions of that act the seizing officer cannot be held

liable until it is affirmatively established before a compe-

tent court that the seizure was without reasonable cause.

III. The action of the naval authorities of Her Majesty

in releasing the Favourite was in direct violation of the

diplomatic agreement between the two governments, and

was not authorized by British law; His Majesty's (rovern-

ment are therefore estopped from asserting any liability

on the part of the United States, since by the wrongful act

of their naval officers they rendered it impossible to deter-

mine in the only competent way the illegality of the seizure.

IV. If the Favourite had been brought to tiial, and if the

court had found tliat the seizure was illegal and without

probable cause. Her Majesty would have been liabh', and

damages would have been assessed in favor of the owners.

V. If the United States could be held liable for the seiz-

ure of the Favourite, which is denied, His Majesty's Gov-

Answer of the United States. 3

ernmeut would still be liable for the detention of the Fa-

vourite from and after August 27, 1894, the date the vessel

was delivered to the commanding officer of the British

cruiser Pheasant at Unalaska.

VT. There is no ])asis in law or in fact for the measure

of damages set forth in the memorial, and aside from any

other consideration the claim should be disallowed for fail-

ure of proof of damages.

I. The officer of the U. S. S. Mohican, in seizing the Fa-

L-ourite, acted under and by virtiie of the authority con-

ferred upon him by the ''Behring Sea Award Act, 1894,^^

and the ^'Behring Sea Aivard Order in Council, 1894,^^ and

ill making the seizure the officer in command of the Mo-

hican tvas acting on behalf of Her Majesty the Queen, and

not on behalf of the United States.

By article (> of the regulations adopted by the Award of

the Tribunal of Arbitration constituted under the treaty of

the 29th of February, 1892, between the United States and

Great Britain, it was ].rovided that "the use of nets, fire-

arms, and exi)losives shall be forbidden in the fur-seal

fishing. This restriction shall not ap'ply to shotguns whensuch fishing takes ])lace outside of Behring's Sea during the

season when it may 1)e lawfully carried on."^

By ai)])roi)riate legislation the governments of the United

States and Great Britain arranged to give effect to these

regulations in the spring of 1894. By the British Act of the

2:>rd of A])ril, 1894, known as the ''Behring Sea xVward Act,

1894," it was provided that the provisions of the Bering

Sea Arbitration Award "shall have effect as if those pro-

visions were enacted bv this act, and the acts directed bvarticles one and t\v(^ thereof to lê forl)idden were expressly

forbidden bv this act."-

* Appendix, p. 42.

A[>ptMi(lix, p. 46.

4 The Favounte.

And I'lirtluM'. Hint "If ilicrc is juiy contrnvciitioii of this

act, any person connnitting, i)rocui'ing, aiding, or abetting

sucli contravention sliall 1)c guilty of a niisdcincanor within

the meaning of the merchant sliiiti)iiig act, isr)4, and the

ship employed in such contravention, and licr (Miuii)ment,

and everytliing on l)oard thereof, shall be liabk^ to be for-

feited to Her ^lajesty as if an offence had 1)een committed

nnder section 103 of the said act.'"

Paragraph 5 of section 1 of the Act provided that section

103 of the Merchant Shipping Act should apply to offenses

under this act, which section of the Merchant Shipping Act

is as follows :^

"Section 103. * * * And in order that the above

provisions as to foi-feitures may be carried into ef-

fect, it shall be lawful for any conmiissioned officer

on full ])ay in the military or naval service of Her

Majesty, or any British officer of customs, or any

British consular officer, to seize and detain any slii])

which has, either wholly or as to any share therein,

become subject to forfeiture as aforesaid, and to

bring her for adjudication before the high court of

admiralty in I^higland oi- liclniid, oi- any court hav-

ing admiralty jurisdiction iu Ilcr Majesty's domin-

ions; and such court may thereupon make such order

in the case as it may think fit, and may award to the

ofificer bringing in the same for adjudication such

portion of the proceeds of the sale of any forfeiteil

shi]^ or share as it may think right."

Section .'>, ])aragraph 3 of the P)elii'iiig Sea Award Act,

provided that "An order in council lUKh-i- this act may pro-

vide. th;it such officers of the rniteil States of Aiiiei-i(»a as

are specified iu the order may, in respect of offences under

this act, exercise the like ];owers un(h'r this act as may be

" Appendix, p. 46.

* Appendix, p. 52.


exercised by a commissioned officer of Her Majesty iu rela-

tion to a British ship, and the equipment and certificate

thereof, or sncli of those powers as appear to Her Majesty

in council to l)e exercisable under the law of the United

States of America against ships of the United States ; and

that such British officers as are specified in the order mayexercise the powers conferred by this act, with any neces-

sary modifications s])ecified in the order, in relation to a

slii]) of the United States of America, and the equipment

and certificate thereof."^

The American act, putting into effect the regulations,

contained a simihir provision authorizing British officers

to seize vessels of the United States guilty of contra-

vening the act of Congress and the President's procla-

mation. (Federal Statutes Annotated, page -tl8.) The

Government of the United States gave due notice to

Tier Majesty's Government of the names of the vessels and

the officers in command assigned by the President for

])atrol duty in the award area,'' and proi)er instructions

were issued to the commanding officers with respect to the

action they should take against offending vessels, both

American and British. These instructions, in so far as

they relate to the action to be taken against British vessels,

were submitted to Her Majesty's Government for approval,

and the original draft was amended to meet certain objec-

tions raised by Her Majesty's Government.' The instruc-

tions, which were approved by Her Majesty's Government,

and finally ])ronmlgated on the -tth of ]\Iay, 1894, were sub-

stantially the same as those issued to British officers as-

signed to the same duty.*" The instructions to Americanofficers contained the following ]irovisions ^'^

•' Appendix, p. 47.

" Appendix, p. 68,

' Appendix, p. 74,

' Appendix, p. 73.

" Appendix, p. 75,

6 The Favourite.

"YoTi will order tlio vossels under your commandto warn all American and British vessels they maymeet not to engage in fnr-seal fishing within the area

of the award, during the periods of time in which

fur-seal fishing is forhiddon, and to deliver to the

master of each of such vessels a copy of the Presi-

dent's proclamation, of the act of Congress, aj)-

proved April 24, 1894, of the President's regulations

governing vessels employed in fur-seal fishing, of the

British act, and of these instructions.

''Whenever a vessel may be warned, the com-

mander of the cruiser, or the customs officer, as the

case may be, shall, after making an examination of

the vessel, leave with the master of said vessel a cer-

tificate showing the date and place of examination,

the number of seal skins, and the number of bodies

of seals then on board, and shall preserve a duplicate

of said certificate. And no officer, subsequently

boarding such vessel, shall seize the same, unless he

shall be satisfied, as herein provided, that it has com-

mitted a violation of law by killing fur-seal within

the area of the award, subseijuent to the oOtli day of

April, 1894.

''If a vessel which appears to be a sealing vessel is

found within the area of the award, during the

periods of time in wliidi fur-seal fishing is forbidden,

you will ascertain whether she is there for th(» ])nr-

pose of fur-seal fishing, whether she has been en-

gaged in fur-seal fishing, whether she was carried

there by stress of weather, by a mistake during foggy

or thick weather, oi- is there in the ordinary course

of navigation making the best of h(»r way to any

place. Yon must judge whether such vessel has been

engaged in fui'-seal fishing from the presence of seal


skins or bodies of seals on board, and from other cir-

cumstances and indications. If such vessel is found

outside of the area of the award, and it is evident

that she has been en<>-aged in fur-seal fishing within

said area, and has thus committed an offense, you

will order her seized. A vessel may violate the law

by her boats fur-seal fishing within said area, while

the vessel herself is outside of said area."

The instructions issued to British officers contained a

clause reading as follows:'"

"Tf a vessel which appears to be a sealing vessel is

found in any waters in which, at the time, hunting is

prohibited, you will ascertain whether she is there

for the purpose of hunting, or whether she has

hunted, or whether she was carried there by stress

of weather, or by mistake, during fog, or is there in

the ordinary course of navigation on her passage to

any i^lace.

''If you are satisfied that the vessel has hunted

contrary to the act, you will seize her and order her

to proceed to the British i)ort hereinafter mentioned;

but if you are of opinion that no offense has been

committed you should warn her and keep her, as far

as you think necessary and as is practicable, under

supervision.

"Whether this vessel has been engaged in hunting

you must judge from the ])i-esence of sealskins or

bodies of seals on board and other circumstances and

indications. If the vessel is found outside the speci-

fied limits and it is evident that she has been hunting

within those limits, and that thus an offense has been

committed, you will seize her and send her to port.

"A vessel, tliough herself not within the ]irohibited

10 Appendix, p. 73.

8 The Favourite.

limits, may violate the act by her honts Imntiiig

within such limits."

The effect of the concurrent legislation and the regula-

tions adopted and promulgated by the two governments was

that, foi- certain specified puri)oses, a joint patrol was estab-

lished, and to all intents and pur])oses each government con-

stituted the officers of the other government its agents for

the ])urpose of enforcing the law as against its own vessels.

It follows, therefore, that any action taken in good faith

by an American officer with regard to a British vessel under

the authority of the British Act and the Order in Council,

and under instructions approved l)y the British Govern-

ment, was on behalf of Her Majesty's Government, for

which Her Majesty's Government were as much responsible

as if such action had been taken by a commissioned officer

of Her Majesty.

In the case of the Favouyitc the action of the seizing offi-

cer was within the scope of the authority conferred upon

him by Her Majesty's Government, and the seizure was

made on behalf of Her Majesty and not on behalf of the

Government of the United States.

TT. Tlie seizure was made in the bona fide belief fJiat the

Beliring Sea Aivard Act, 1894, had been violated. Under the

provisions of that (ut tlic seizing officer canind he licld liable

until it is affirmatively established before a competent court

that the seizure ivas tvithout reasonable cause.

The facts an<l circumstances giving rise to the seizure of

the Favourite show beyond question that the seizing officer

was acting in the bona fide belief that the Favourite was

using firearms in liunting fur seals in contravention of the

British ad and that he had i-casonal)le gi-ounds foi- such

belief.

Ansvjer of the United States. 9

When the Favourite was boarded she was withiu the

limits of Bering Sea wherein the use of firearms and ex-

l)losives was forbidden by the British act." The attention

of the boarding officer was called to a shotgun which was on

board unsealed, and which the master of the vessel claimed

was used for signalling ])urposes. The boarding officer re-

])orted the facts to the commanding officer of the Mohican,

who directed that the master of the Favourite bring the

gun and the ship's ])a])ers on board the Mohican. A fur-

ther examination of the gun was then made and it was

found, after having been fired, to shoot very accurately for

a distance of fifty yards." The i)resence of this gun un-

sealed was deemed l)y the commanding officer of the Mo-

hican sufficient evidence to justify the arrest of the Favour-

ite on a charge of having violated the British act l)y using

firearms in the taking of fur seals within the area of Bering

Sea.

There is wholly lacking in this case any evidence that the

seizing officer acted otherwise than in the utmost good faith.

A careful examination was made i)rior to the seizure and

the gun was tested for the i)urpose of ascertaining whether

or not it could be used as a firearm in taking seals.'^

Section 104 of the Merchant Sliii)ping Act, annexed to

and made a ])art of the "Fk'hring Sea Award Act, 1894,"

contains the following provisions :^^

'

' Section 104. No such officer as aforesaid shall be

responsible, either civilly or criminally, to any person

whomsoever, in res])cct of the seizure or detention of

any ship that has been seized or detained by him in

pursuance of the ])rovisions herein contained, not-

withstanding that such shi]) is not brought in for ad-

judication, or, if so brought in, is declared not to bo

" Memorial,

10 The Favourite.

liable to forfeiture, if it is shown to the satisfaction

of tlie jndge or court before whom any trial reUiting

to such ship or such seizure or detention is held that

there were reasonable grounds for such seizure or

detention; but if no such i>-rounds are shown, such

judge or court may award i)ayment of costs and dam-

ages to any party aggrieved, and make such other

order in the premises as it thinks just."

Inasmuch as the authority extended to iVmerican officers

by the Order in Council of 1894 was the same as the author-

ity vested in British officers, the exemption from responsi-

bility applied to American officers when acting under the au-

thority conferred upon them by the Order in Council. Be-

fore an American officer could be held liable for the seizure

of a British vessel, it must be found by a court of competent

jurisdiction that the seizure was illegal and was made with-

out reasonable grounds.

That facts, similar to those giving rise to the seizure of the

Favourite, constituted reasonable grounds for the seizure of

a British vessel by an American officer is am])ly demon-

strated by the decisions of the (-anadian courts in cases

growing out of seizures in similar circumstances. In the

case of the E. B. Marvin, seized in 1895 by the United States

revenue cutter Rush, where the evidence relied upon was the

presence of a sealskin on board containing a hole apparently

made by a gunshot and a small discrepancy between the

actual auiount of ammuuitiou and that a])pearing in the

manifest, the vessel was released, but it was held that the

arrest was justifiable (^))on this point Davie, C. J., L. .!.,

in delivering judgment, said:

''I think that the discrepancy at first in ihe num])er

and ill the kind between the ammunition found and

that described in I he mniiil'est created sufficient sus-

picion to warrant the arrest; but this suspicion, I

Ansiver of the United Stated. 11

think, lias been satisfactorily cleared up by Captain

Byers.

"The suit will, tlierefore, be dismissed without

costs.'"'

In this case the court attached no importance whatever

to the hole in the skin found on board. The only question

considered was the discrepancy between the ammunition

produced and that described in the manifest. It was shown

at the trial that the master had relied upon the count made

by his hunters, and that they had been honestly mistaken as

to the number and description of shells on board.

In the case of the Aurora, seized by the United States

revenue cutter Rush on the 10th of Aug'ust, 1896, for having

on board sealskins containing holes apparently made by

gunshot, the court likewise dismissed the vessel, but held,

as in the case of the E. B. Marvin, that the arrest was justi-

fied, and added, "the burden of showing that firearms had

not been used was imposed on the vessel.'"" In this case

the owners of the vessel claimed damages by reason of the

seizure, but their claim was disallowed.

Attention should likewise be called to the fact that at the

time of the seizure of the Favourite the "Nortli Pacific Act,

1893," was still in force. This act contained the provision

that if, during prohibited times and in prohibited waters,

a British ship is found having on board thereof fishing and

shooting im])lements or sealskins, it shall lie on tlie owner

or master of such vessel to prove that the ship was not used

or employed in contravention of the act.^'

That this provision of the act of 1893 was not rendered

ino])erative by the "Behring Sea Award Act, 189-1-," and

that such provision a])plied equally to seizures made by

American oflicei-s as to those made by British officers was

" Appendix, p. 118.

'"Appendix, p. 128.

" Appendix, p. 31.

12 The Favourite.

established in the case of the Shelby, decided in 1895 by

Davie, C. J., 1.. .1.

This case arose out ol" the seizure of the Shelh)! by the

United States revenne cutter Coiirin, on the 11th of May,

1895, on the ground that she was found within the award

area during the close season luiving on board sealskins and

implements for taking them, lii delivering judgment in

this case the court said:

''By section 1, sub-section 6, of the Seal Fishery

{North Pacific) Act, 1893, which Act was in force at

the time of the seizure, if, during prohibited times

and in ])roliibited waters, a British ship is found hav-

ing on board thereof fishing and sliootiug iuiph'ments

or seal skins, it shall lie on tlie owner or master of

such vessel to prove that the ship was not used or

employed in contravention of the Act. The Acts of

1893 and 1894 l)eing in pari materia are to be read as

one Act.

''The Shelby, therefore, having been found within

prohibited waters with seals and implements for tak-

ing them on board is to be deemed to have been em-

ployed in contravention of the Act unless the con-

trary be shown.""*

In view of this provision of the British law, if the Fa-

vourite had been taken to trial as she should have been, the

burden would have been upon the nuister to prove that the

vessel had not been used in contravention of the Act, and no

liability would have attached to the officer making the seiz-

ure even though the vessel was released.

Lord Salisbury, in his instruction of August 16, 1895, to

the British Embassy at Washington, made this statement:

"A duly authorized officer of the United States is

warranted in seizing a British vessel if ho believes,

' Appendix, p. 136.


or lias reasonable ground for believing, that the

British law has been violated.'"''

It is submitted that in the case of the Favourite the seiz-

ing officer believed, and had reasonable grounds for believ-

ing, that the British law had been violated.

III. The action of the naval authorities of Her Majesty

in releasing the Favourite ivas in direct violation of the

diplomatic agreement between the tivo governments, and

was not authorised by British law; His Majesty's Govern-

ment are therefore estopped from asserting any liability on

the part of the United States, since by their own wrongful

act they rendered it impossible to determine in the only

competent manner the illegality of the seizure.

The Order in Council of 1894 conferring authority upon

American officers to seize British vessels for contravention

of the British act provides that vessels seized by American

officers may be brought by such officers for adjudication

before any such British court of admiralty as is referred to

in section 103 of the "Merchant Shipping Act, 1854," or

that they may be delivered to any such British officer as is

mentioned in the said section for the purpose of being dealt

with pursuant to the Merchant Shipping Act.-°

No authority is conferred upon British naval officers to

review or pass upon seizures made by American officers;

their authority and duty in the premises are confined

solely to the bringing before the appropriate court for trial

vessels delivered into their custody.

The contention of His Majesty's Government that the

senior British naval officer, to whom the Favourite wasdelivered, was justified in releasing the vessel for the

reason that tlu> declaration of the seizing officer did not

"Appendix, p. 96.

*" Appendix, p. 52.

14 The Favourite.

set forth facts constituting a violation of Britisli law is

not sustained by the evidence in tlie case. The declara-

tion of the seizing officer shows clearly that the seizure

was made for a violation of the Paris awartl, which is an-

nexed to and made a part of the " Behring Sea AwardAct, 1894." While it is true that the declaration is not so

worded as to allege that the offense of hunting fur seals

with firearms had been committed, there is nevertheless the

direct charge that the vessel had been guilty of a contraven-

tion of the "Behring Sea Award Act, 1894,"-' and the decla-

ration contains a statement of the evidence upon which the

officer relied to establish the fact of such contravention. It

is immaterial that the seizing officer also charged that the

President's proclamation of April 9, 1894, had been vio-

lated, so long as there was an allegation of an offense under

the Britisli act or evidence from which such an offense might

be presumed.

The Canadian courts have repeatedly held that irregu-

larities in the seizure of a vessel or in the declaration of

seizure were not material so long as the proceedings before

the court were regular.

In the case of the Caiiotta G. Cox,^- seized in 1907 bv the

United States revenue cutter Rush on suspicion of having

contravened the Behring Sea Award Act, the point was

raised that the seizing officer was not duly commissioned

and instructed by the President for that purpose, and that

the name of the vessel making the seizure had not been com-

municated to Her Majesty's Government. T^pon this ques-

tion the court held as follows:

"In my opinion, even assuming that the com-

mander of the Rush was not 'duly commissioned and

instructed' to seize the schooner, and even though the

commander of the Quadra to whom she was first de-

livered is not an officer who can take proceedings

** Appendix, p. 26.

= Appendix, p. 128.


against her under said section 103, yet seeing the fact

is that she has been brought for adjudication before,

and is now l)efore this Court (and in the custody of

its marshal ) by and at the instance of an officer. Com-

mander Allgood, E. N., who admittedly is within said

section 103, and who claims her condemnation for

contravention of the Behring Sea Award Act, it is not

open to her owners to answer that charge (whatever

other remedies they may have) b}'^ setting up irregu-

larities in tlie manner in which she was originally

seized or in the means whereby she was ultimately

brought within the jurisdiction of this Court, and,

later, before it by Commander Allgood who in-

structed the writ to be issued on the 29th of Novem-

ber, as appears by the indorsement thereof. Ac-

cording to the principle decided in The Annandale

(1877), 2 P, L). 179, the forfeiture here accrued at

the time the illegal act was done, and I am unable to

agree that any of said antecedent irregularities can

affect the admittedly regular proceedings in this

Court. "^^

In the case of the Shelby, the declaration of the seizing

officer alleged a violation of the President's proclamation,

but as the seizure was in fact made because of circum-

stances which gave reasonable grounds for believing that

the British act had been violated, the form of the original

dechiration was held to be immaterial and a proper libel

was tiled by the British officers and the vessel was brought

to trial.-*

The United States contends, however, that irrespective of

' whether the seizure of the Favourite was justified, His

Majesty's (lovernment are estopped from asserting any lia-

bility on the ])art of the United States, even if such liability

*' Appendix, p. 133.

'* Appendix, pp. 81, 102.

1() The favountc.

could arise fvoiii the act of an officer of the ruited States

wliile enforcing' a I)ritisli law Tinder a special authority,

since the unauthorized act of tlie Britisli naval officer at

Victoria, B. C, in releasing tiie Favourite rendered it im-

possible to determine in the only way possible under

British law the question of the legality of the seizure. If

the vessel had been brought to trial, this question would

have been determined by a competent court, and the owners

of the vessel would have had a perfect and complete remed.y

by asserting a counter-claim for damages on account of the

alleged illegality of the seizure. If it had been determined

by the court that the seizure was made without probable or

justifiable cause, the court was empowered to make such

order in the premises as the facts and circumstances of the

case warranted.

The United States denies that in any circumstances the

United States could be held liable to His Majesty's Govern-

ment on account of the seizure of a British vessel by an

American officer acting under and by virtue of the authority

of the British Government; but it is manifest that, if in any

circumstances the United States could be held liable, such

liability would attach only after it had been determined by a

court of competent jurisdiction that His Majesty's Govern-

ment were liable for the seizure.

IV. If the Favourite had been brought to trial, and if the

ôurt had found that the seizure ivas illegal and irifhout

probable cause, Her Majesty woidd have been liable, and

iamages ivould have been assessed in favor of the owners.

As set forth in the first section of this answer, the United

States maintains that seizures by American officeis under

and by virtue of the authority conferred u])on them by the

"Behring Sea Award Order in Council, 1894," were to all

intents and purposes seizures by Her Majesty's Govern-

ment. The authority under which the Favourite was seized

Answer of the United States. 17"

emanated from Her Majesty's Goveriimeiit, aud not from

the United States. Tt follows as a natural consequence that,

if at the trial the court should have found that the owner

of the vessel was entitled to damages, Her Majesty's Gov-

ernment would have been held liable.

This is clearly established by the case of the Beatrice,

growing out of her seizure l\v the United States revenue

cutter R}isli in August, 1895. Tt was lield in that case

tliat thei-e were no justifiable grounds for the seizure; and,

claim having been made by the owners for an allowance

of damages. Her Majesty was held liable in the sum of

$3,163.50.-^^

While the United States is confident that, if the case of

the Favourite had gone to trial, the court would have held

that the seizure was justified, even though the charge

against the vessel might have been dismissed, yet, if the

court had found otherwise, any damages which might have

been assessed in favor of the master or owner of the Fa-

vourite would have been against Her Majesty's Govern-

ment.

The authorities of Her late Majesty's Government fully

recognized this fact, and understood that Her Majesty wasliable for seizures made under and by virtue of the British,

act and order in council. In his note of June 25, 1896, to

the Secretary of State, the British Ambassador said:

"In existing circumstances Her Majesty's Govern-

ment are unal)]e to consent to the United States Gov-

ernment being recognized in the trials in question as

a party to the litigation with a locus standi before the

Court; l)ut the situation would be altered if the

United States Government were to enter into an

agreement to satisfy the judgment of the Court if the

seizure should be held to be wrongful. They would

25 Appendix, p. 122.

2-Fav.

18 The I'avounte,

then have nn interest in the result of the case which

would make it reasonable that they should in some

form take an active part in the conduct of the ])i-o-

ceedings, '

'-"^

The fact that the owners of the Favourite accepted the

release of the vessel without prosecuting their claim for

damages before the British courts, as they had a right to

do, is sufficient in itself to justify the dismissal of this claim.

V. If the United States could he held liable for the seiz-

ure of the Favourite, which is denied, His Majesty's Gov-

ernment ivould still be liable for the detention of the Fa-

vourite from and after August 27, 1894, the date when the

vessel was delivered to the commanding officer of the Brit-

ish cruiser Pheasant.

Upon the admitted facts of this case it is apparent that

for the detention of the Favourite from and after Au-

gust 27th—the date the vessel was delivered over to the

commanding officer of the British cruiser riieasant'-'—the

British authorities were solely responsible. The senior

British officer at Ilnalaska took command of the Favourite

without protest, and acting under his own authority and dis-

cretion, ordered her to report to the British customs author-

ities at Victoria.-** According to the theory of Tlis Majesty's

Government, the British naval officers had discretionary

power to release vessels from custody if they deemed the

evidence of violation of the regulations insufficient to war-

rant their detention. The fact that the officer to whom the

Favourite was delivered did not release her immediately

shows that in his judgment the detention was justifiahle

and the evidence was sufficient to require the question of

guilt to be decided by the appropriate court.

"ApppTiflix, p. 114.

" Appendix, p. 29.

* Memorial, p. 7.


The United States denies that British officers had any

authority or right to pass upon seizures made by American

officers ; but even conceding them this right, the liability of

the United States must, under any theory, be limited to

damages caused by the detention from August 24 to August

27, 1894.

VI. There is no basis in law or in fact for the measure of

damages set forth in the memorial, and aside from any other

consideration the claim should he disallowed for failure of

proof of damages.

The United States calls attention to the exaggerated claim

for damages as set forth in the memorial of His Britannic

]\Iajesty's Government. It is claimed that the Favourite,

if she had not been interfered with, would have taken 2,343

skins during the remainder of the season.'^ From the 1st of

August to the date of seizure the Favourite had taken 1,247

skins, or an average of 52 skins per day.^" To take 2,343

skins at the same average rate per day would require 45

days; but as a matter of fact sealing comes to an end in

Bering Sea about September 1st; so that, according to the

above calculation, the vessel would be required to take daily

293 seals to secure the catch estimated. In 1886 this same

vessel, the Favourite, was warned out of Bering Sea on

August 3rd, and Her Majesty's Government, in presenting a

claim before the Bering Sea Claims Commission in 189() for

damages for the estimated catch of the vessel, based such

estimate on 28 more sealing days in the season, showing

that it was understood that the season closed Se])tember 1st.

The foregoing statements are offered for the purpose of

showing the unreasonable character of the present claim for

damages, even if there were any legal princi])le for the al-

lowance of damages of this natui-e, which the United States

K/? iZ

™ Memorial, p. 7.

^ Memorial, p. 7.

20 The Favourite.

denies. In addition to the extravagant claim for estimated

catch, there is a further claim mad(^ for interest from No-

vember 30, 1894, at the rate of seven per cent, nlthongh by

the terms of submission annexed to the Special Agreement

of August 18, 1910, no more than four jter cent can, in any

event, be allowed.

For the foregoing reasons, the United States asks that

the claim entitled ''The Favourite'' be dismissed and finally

barred.

Robert Lansing,

Agent of the United States.

Appendix to the Answer. 21

APPENDIX.

CONTENTS.

PageExhibit 1. Eeport of Ensign Senn, August 24, 189-4 23

Exhibit 2. Report of Lieutenant Wadhams, August 24, 1894 24

Exhibit 3. Declaration of Seizure, August 24, 1894 25

Exhibit 4. Lieutenant Wadhams to the Master of the Favourite,

August 24, 1894 27

Exhibit 5. Orders to Midshipman Pratt, August 24. 1894 28

Exhibit 6. Extract from Log of the U. S. Albatross, August 28, 1894. 29

Exhibit 7. Report of the Commanding Officer of the United States

Naval Forces in Bering Sea, August 30, 1894 30

Exliibit 8. Seal Fishery (North Pacific) Act, 1893 31

Exiiibit 9. Award of the Tribunal of Arbitration, constituted under

the treaty concliided at Washington, February 29, 1892. 35

Exhibit 10. Behring Sea Award Act, 1894 45

Exhibit 11. Behring Sea Award Order in Council, 1894 64

Exhibit 12. The Secretary of State to the British Ambassador, April

18, 1894 68

List of vessels assigned to patrol duty in Bering Sea 68

Exhibit 13. Original draft of instructions to the Commanding Officer

of the Ignited States Naval Forces in Bering Sea, April

18, 1894 68

Exliibit 14. The British .\mbassador to the Secretary of State, April

30, 1894 72

Instructions to British Cruisers as to seizures 73

Exhibit 15. The Secretary of State to the British .-Vmbassador, ^lay

9, 1894".

74

Instructions to the Commanding Officer of the

United States Naval Forces in Bering Sea, Mav^, 1894 .....". 74

Exhibit 16. The British Ambassador to the Secretary of State, May10, 1894

; \ 78

Memorandum of Special Agreement for 1894 79

Exhibit 17. Tlie Secretary of State to the British Ambassador, May1 1 , 1894 '.

81

Hxhibit IS. Tiio Secretary of State to Lord Cough, June 14, 1895 SI

Exhibit 19. The Secretary of State to Mr. Roosevelt, June 18, 1895. . . 83

Exhibit 20. The Acting Secretary of State to Lord Cough, July 1, 1895 87

Exhibit 21. The Marquis of Salisliury to Lord Cough, August 16,1895. 91

Exhibit 22. Lord Salisbury to the .\mericaii .Vmbassador, .\ugust 30,

1895 96

Exhibit 23. The American And)assador to the Secretary of State, Sep-

tember 3, 1895 98

Exhibit 24. The Acting Secretary of State to Lord Cough, September

12, 1895 101

22 The Favourite.

I'asc

Exhibit 25. The Secretary of State to the British Ambassador, Octo-

ber, 1, 1895 i02

Exhibit 26, Opinion of the Attorney General, October "il, 1895 103

Exhibit 27. The Secretary of State to the liiitisli Amliassadnr, April

9, 1896 lOS

Exhibit 28. The Britisli Anil.assaddr lo tlic S('cr(>tary of State, .lime

25. iSiHi 1 1;;

Ivxhihit !'!•. Opiiiidii of tlii' Court in Hie Case (if 1 lie E. B. Marvin.... 115

Exhibit 30. The Case of tiie Ship Beatric": 11!*

Exhibit 31. The Case of the Ship Aurora 123

Exhibit 32. The Case of the Ship Carlotta G. Cox 128

Exhibit 33. The Opinion of the Court in the Case of the Shelby 135


EXHIBIT 1.

Report of Ensign Senn.

V. S. S. Mohican (3d Kate),

Bering Sea: Lat. 54-38' N., Long. 168-29' W.,

August 24, 1894.

Sir:

I respectfully roi)()rt that, in ()l)e(lieiice to your verbal

orders, T l)oarded at six o'clock this morning, in Lat. 54-38'

N., Long. 368-29' W., the Britisli sealing schooner Favour-

ite, of Victoria, British Oolmnbia, registered No. 61302,

Captain Laughlin McLean.

2. At my recjnest the master produced all the ship's

papers. I saw on the manifest that he had one shotgun, and

the master, producing it, said that he used it for sight sig-

naling. This gun is a double-barrel shotgun, with the bar-

rels cut off to about 12 inches from the stock and the butt

of the stock sawed otf.

3. I returned on board the Mohican; reported to you that

this gun was on board. You instructed me to return to the

Favourite and direct the master to come on board with all

his papers and the gun. The master returned with me, and

under your direction the gun was fired, and found to shoot

very accurately for a distance of 50 yards.

4. You then informed the master that his vessel would be

seized.

Very respectfully,

Thos. J. Senn,

Ensign, U. S. Navy.

The Commanding Officer,

U. S. S. Mohican.

24 The Favourite.

EXHIBIT 2.

Report of LicHtcnaid WadJiams.

U. S. S. Mohican (3d Rate),

Bering Sea, August 24, 1894.

Sir:

T have the honor to report that I seized today, in hititnde

54:°-38' north, longitude 168°-29' west, tlie British scliooner

Favourite, 80 tons. Laugh] in McLean, master and owner, for

having on board a double-barrel shotgun,

2. Ensig]i T. J. Senn, the boarding officer from this vessel,

while examining the manifest of the Favourite, found an

entry of one shotgun, which the master ]^roduced, stating

that it was used for signal purposes. The gun was not

sealed, and upon examination on board this vessel, it was

found to be No. 10 gauge boi-e. The l)arrels had been cut

otf, leaving them about 12 inches long, but upon trial the

gun was found to shoot accurately at least fifty yards. En-

sign Semi's report in regard to the finding of the shotgun is

enclosed, marked "A."3. The possession of this firearm is in violation of section

10 of the Act of Congress approved April (I, 1894, mentioned

ill th(^ President's proclamation in regard to seal fish-

eries, dated A])ril 9, 1894. The second clause of the above-

mentioned section reads as follows : "Or if any licensed ves-

sel shall he found in the waters to which this Act a|>i)lies,

having on board apparatus or implements suitable for tak-

ing seals, but forl)idden then and there to be used, it shall

be presumed that the vessel in the one case and ilic ap-

paratus ())• ini|)lements in ilic otlici-, was or were used in

violation of this Act nntil i1 is otliei'wise sufficiently

proved,"

4. T j)on seizui'e, the master of the Favoiirilc was ordered

to ))roceed to Unalaska with his vessel. Naval Cadet A. A.

Appendix to the Ansicer. 25

Pratt and four men were put on board in accordance with

the instructions of the Navy Department, dated May 4, 1894.

5. The ship's papers and the shotgun were i)ut in Mr.

Pratt's possession, with orders to deliver them and the ves-

sel to the Senior British Naval Ofhcer at Unalaska or to the

commanding officer of any British man-of-war that he might

fall in with. A copy of Mr. Pratt's orders is enclosed,

marked ''B."

6. The master of the Favourite was furnished a receipt

for all the ship's papers and the shotgun. He was also

given a declaration stating why I seized his vessel. A copy

of said declaration is enclosed, marked ''C."

7. Upon seizure the official log of the Favourite stated

that there were 1,238 sealskins on board.

8. I would further state that the master of the Favourite

made no protest whatever in regard to the seizure.

Very respectfully,

A, V. Wadhams,

Lieutenant, U. S. Navy, Commaiuliug.

The Commander U. S. Naval Forces,

In Bering Sea.

EXHIBIT 3.

Declaration of Seizure.

U. S. ^.Moliicau (3d Rate),

Bering Sea: Lat. 54-38' N., Long. 168-28' W.,

August 24, 1894.

I, A. V. AVadhams, Lieutenant, IT. S, N., commanding the

U. S. S, Mohican during the illness of Oonnnandor Charles

E. Clark, declare that 1 have this day seized in Iv.-it. 54-38'

N., Long. 168-29' AV., the British schooner Favourite, 80

tons, Laughlin McLean, master, owned ])y l.aughlin AFc-

Lean, fitted for sealing and having on board 1,238 sealskins,

as per official log.

26 The Favourite.

I further declare that T liave seized the Farotirifc for

having on board a double-barrel shotgun, which was found

upon trial on board this vessel to carry No. 10 gauge car-

tridges and to shoot accurately at least fifty yards, the pos-

session of this shotgun being in contravention of article 6,

Award of the Tribunal of Arbitration, and of that part of

section 10 of the Act of Congress which reads:

*'0r if any licensed vessel shall be found in waters to

which this act applies, liaving on board apparatus or imple-

ments suitable for taking seals, but forbidden then and

there to be used, it shall be presumed that the vessel in the

one case and the apparatus or implements in the other, was

or were used in violation of this act until it is otherwise

sufficiently proved."

And I further declare that the Favourite ai)pears to be

in good condition ; that I have placed Naval Cadet A. A.

Pratt, IT. S. N., and four men on board with orders to turn

her over to the Senior British Naval Officer at Unalaska, or

to the commanding officer of any British vessel that may be

fallen in with at sea; that I have given the master direc-

tions to proceed to Unalaska, and stated therein that his

authority over his crew is in no way abridged so long as

he endeavors to carry out in good fnitli the instructions

given him.

And T further declare that T have placed in possession of

Naval Cadet A. A. Pratt, IT. S. N., the officer sent in the

Favourite, the vessel's papers and the shotgun referred to,

giving a receipt to the master for tlie same, the said receipt

stating that the shotgun and papers will be delivered with

the vessel to the Senior British Naval Officei- at Unalaska.

And T further declare that the witnesses in the case are

Ensign Thomas J. Senn and myself.

A. V. Wadhams,

Lientenant, U. S. N.,

Com.wanding U. S. S. Mohican.

Appendix to the Ansiver. 27

EXHIBIT 4.

Lieutenant Wadhams to the Master of the Favourite.


Lat. 54-38' N., Long. 168-29' W.,

August 24, 1894.

To L. McLean,

Master, Schooner Favourite:

Your vessel having been seized for violations of article

six (6) of the Award of the Tribunal of Arbitration and of

that part of section ten (10) of the Act of Congress ap-

proved April 6, 1894, which reads: " * * *; or if any

licensed vessel shall be found in the waters to which this

act applies, having on board apparatus or implements for

taking seals, but forbidden then and there to be used, it

shall be presumed that the vesvsel in the one case and the

apparatus or implements in the other was or were used in

violation of this act until it is otherwise sufficiently

proved." You are hereby directed to proceed with the

vessel under your command, and all persons borne on your

shipping articles to Unalaska, there to be turned over to

the Senior British Naval Officer Present, for such action as

he deems fit.

2. The shotgun which you produced when Ensign T. J.

Senn, U. S. Navy, the boarding officer, found its entry in

the manifest of your vessel, and which you stated was a

signal gun, was found after trial on board the Mohican to

carry No. 10 gauge cartridges and to shoot with accuracy

at least fifty (50) yards.

3. Naval (*adet A. A. Pratt, IT. S. Navy, and four menwill be placed on hoard your vessel to see that you carry

out these instructions without undue delay.

4. You are distinctly informed that your authority and

responsibilities as master are in no wise affected or

28 The Favourite.

abritlged except in so far that your inoveiiieiits are eon-

fined to the passage from tliis lylace to Unalaska, and that

yon are ordered to retain all your crew on ])oai'd until your

arrival there, in other words, yon renuiin in complete

command of your vessel, and the duty of (^hedicncc by your

crew to vour lawful orders remains in the same force as

heretofore.

5. Should a British man-of-war be encountered en route,

her commanding officer will be re(]uested to assume charge

of the Favourite.

G. Naval Cadet Pratt will render you any reasonable

assistance in his power on the passage, if you so desire.

7. You hold my receipt for certain documents which I

have found it necessary to withdraw from your custody.

A, V. Wadhams,

Lieutenant, U. S. Navy, Commanding.

EXHIBIT 5.

Orders to Midshipman Pratt.


Bering Sea : Lat. 54-35' N., Long. 168-28' W.,

August 24, 1894.

Sir:

You are hereby placed on board the seized British

schooner Favourite to see that she proceeds without delay

to Unalaska, where you will hand lici- over to the Senior

British Naval Officer Present, taking his receii)t therefor

with that of all enclosed papers.

2. You will have under your command an armed force of

four enlisted men, rationed for ten days.

3. You will not interfeic with the duties of the master

unless it becomes evident to you that he purposes escape or


unreasonable delay. But you will give him such aid as he

may desire and you can properly render.

4. On reaching Unalaska, you will at once communicate

with the Senior United States Naval Officer Present—if

there be one—and show him these orders.

5. If there be no British ship in port, you will hold the

Favourite until one arrives.

6. Should you fall in with a British man-of-war en route,

you will request her commanding officer to relieve you of

the charge of the Favourite, and to land you either at Una-

laska or some other port where you may obtain transporta-

tion to that point.

7. \Vlien free of the Favourite, await the Mohican's ar-

rival at Unalaska.

Very respectfully,

A. V. Wadhams,Lieutenant, U. S. Navy, Commanding.

Naval Cadet A. A. Pratt,

U. S. Navy.

EXHIBIT 6.

Extract from Log of the U. S. S. Albatross, at Anchorin Dutch Harbor, Tuesday, August 28, 1894.

From 8 a. m. to meridian

:

Overcast and cloudy. Light breeze from E. S. E. to E.N. E. coaling ship. Naval Cadet H. H. Pratt, with fourmen from U. S. S. Mohican, reported on board as the prizecrew of sealing schooner Favourite. Transferred schoonerto charge of commanding officer H. M. S. Pheasant.

P. Williams,

Ensign, U. S. N.

30 The Favourite.

Note.—H. 11. Pratt, referred to above, is inteiuled for

A. A. Pratt. iiiidslii^îiiaTi, T"^. S, N.. error linviii.u' been innde

in bis initials.

Victor Blue,

Chief of Bureau of Navigation.

EXHTPJT 7.

Report of Commander of Naval Forces.


Dutch Hariôr, Alaska,

August 30, 1894.

Sir:

I bave the bouor to enclose berewitb all ici torts concern-

ing tbe seizure of tbe British schooner Far nitrite, Laugblin

McLean, master, of Victoria, B, C2. Tbe seizure was made by Lieut. A. V. Wadliams, then

in command, as I was on the sick list, but as the act is likely

to be characterized as unjustifiable by the owners, and

otherwise unfavorably conunented u])on. 1 will hovo state

that he was only carrying out my instructions.

3. It is more than likely that the shotgun I'oi- wbicb the

vessel was seized was intended to be used in projecting sig-

nal stars, as the barrels were cut off, reducing them to a

length of about twelve inches, but it was found after trial,

that it could be used to kill seals much beyond the ordinary

range of spear throwing.

4. But whether this was the only intention, or wbetbcr

there was another to use it foi- killing seals in case it was

allowed for signal purposes, T am not i)re])ared to say; but

its possession is clearly in violation of the provisions con-

tained in sec. 10 of the Act of Congress approved April 6,

1894.

Appendix to Answer. 31

5. The master states, and his manifest shows, that the

collector of the port of Victoria knew the shotgun was on

board, but I am sure the collector informed him, as he has

others, that permission to carry it unsealed in Bering Sea

was upon the condition that a further authorization should

be obtained when he reached Unalaska.

6. The cartridges or stars used in signaling so closely

resemble the ordinary cartridges used in shotguns that

there would be little chance of finding ammunition whenoverhauling sealers, if these so-called signal guns and

charges are allowed on board.

Very respectfully,

C. E. Clark,

Commander, U. S. Navy,

Commanding U. S. Naval Forces in Bering Sea.

The Honorable Secretary of the Navy,

Navy Department,

"Washington, D. C.

EXHIBIT 8.

Seal Fishery {North Pacific) Act, 1893. {56 Vict., Chap.

23.)

Chapter 23.—An act to provide for prohibiting the catch-

ing of seals at certain i)eriods in Behring's Sea and other

parts of the Pacific Ocean adjacent to Behring's Sea.

(June 29, 1893.)

Whereas it is expedient to extend the seal fishery (Behr-ing's Sea) act, 1891, to other waters of the North Pacific

Ocean adjacent to Behring's Sea, and for that purpose to

repeal and reenact that act

:

32 The Favourite.

Bo it therefore enacted by the Queen's most Exeollont

Majesty, by and with the advice and consent ol' the Lords

Spiritual and Temporal, and Oommons, in this present

Parliament assembled, and by the authority of the same, as

follows

:

1. (1) Her Majesty, the Queen, may, by order in council,

prohibit during the period specified by the order, the catch-

ing of seals by British ships in such parts of the seas to

which this act applies as are specified by the order,

(2) While an order in council under this act is in force

—

{a) A person belonging to a British ship shall not kill,

take, or hunt, or attempt to kill or take, any seal during the

period and within the seas specified by the order ; and

{})) A British ship shall not, nor shall any of the equip-

ment or crew thereof, be used or employed in such killing,

taking, hunting, or attempt.

(3) If there is any contravention of this act, any person

committing, iDrocuring, aiding, or abetting such contraven-

tion shall be guilty of a misdemeanor within the meaning of

the merchant shipping act, 1854, and the ship and her equip-

ment, and everything on board thereof, shall be forfeited

to Her Majesty as if an offence had been committed under

section one hundred and three of the said act, and the pro-

visions of sections one hundred and three and one hundred

and four, and part len of the said act, and of section thirty-

four of the merchant shipping act, 1876 (which are set out

in the schedule to this act), shall apply as if they were

herein reenacted and in terms made applicable to an of-

fence and forfeiture under this act, and any connnissioned

officer on full pay in the naval service of Her Majesty the

Queen may seize the shi])'s certificate of registry.

(4) Any commissioned officer on full pay in the naval

service of Her Majesty the Queen shall have power, during

the period and in the seas specified by the order, to stop


and examine any British ship, and to detain her, or any por-

tion of her equipment, or any of her crew, if in his judg-

ment the ship is being or is preparing to be used or em-

ployed in contravention of this section.

(5) For carrying into effect an arrangement with any

foreign State, an order in council under this act may pro-

vide that such officers of that State as are specified in the

order may exercise the like powers under this act as may

be exercised by such a commissioned officer as aforesaid in

relation to a British ship, and the equipment and crew and

certificate thereof, and that such British officers as are

specified in the order may exercise, with the necessary

modifications, the powers conferred by this act in relation

to a ship of the said foreign State, and the equipment and

crew and papers thereof.

(6) If during the period and within the seas specified by

the order a British ship is found having on board thereof

fishing or shooting implements or seal skins or bodies of

seals, it shall lie on the owner or master of such ship to

prove that the ship was not used or employed in contraven-

tion of this act.

2. (1) Where an officer has power under this act to seize

a ship's certificate of registry, he may either retain the

certificate and give a provisional certificate in lieu thereof,

or return the certificate with an indorsement of the grounds

on which it was seized, and in either case may direct the

ship, by an addition to the provisional certificate or to the

indorsement, to proceed forthwith to a specified port, bîng

a port where there is a British court having authority to

adjudicate in the matter, and if this direction is not com-

plied with the owner and master of the ship shall, without

prejudice to any other liability, each be liable to a fine not

exceeding one hundred pounds.

(2) Where in pursuance of this section a provisional cer-

tificate is given to a ship or the shiji's certificate is indorsed.

34 The Favourite.

any British officer of cnstoms; or British eonsiihu' officer

may detain the ship until satisfactory security is g-iveu for

her appearance in any leg'al proceedings which may be

taken against her in jnirsuance of this act.

3. (1) A statement in writing, ])urporting to be signed, by

an officer having power in inirsuance of this act to stop and

examine a ship, as to th^ circumstances under which or

grounds on which he stopped and examined the ship, shall

be admissible in any proceedings, civil or criminal, as evi-

dence of the facts or matters therein stated.

(2) Tf evidence contained in any such statement was

taken on oath in the presence of the person charged in the

evidence, and that person had an opportunity of cross-ex-

amining the person giving the evidence and of making his

reply to the evidence, the officer making the statement may

certify that the evidence was so taken and that there was

such opportunity, as aforesaid.

4. (1) Her Majesty the Queen, in counsel, may make, re-

voke, and alter oixlers for the purpose of this act, and every

such order shall be forthwith laid before both Houses of

Parliament and published in the London Gazette.

(2) Any such order may contain any limitations, condi-

tions, qualifications, and exceptions which appear to Her

Majesty in council expedient for carrying into effect the

object of this act.

5. (1) This act shall apply to the animal known as the

fur seal, and to any marine animal specified in that behalf

by an order in council under this act, and the expression

"seal" in this act shall be construed accordingly.

(2) This act shall apply to the seas within that part of

the Pacific Ocean known as Behring's Sea, and within such

other parts of the Pacific Ocean as are noiHi of the foi'ty-

second parallel of (north) latitude.

(3) The expression "equipment" in this act includes any

boat, tackle, fishing or shooting instruments, and other

things belonging to a ship.


(4) This act may "be cited as the seal fishery (North Pa-

cific) act, 1893.

(5) The seal fishery (Behring's Sea) act, 1891, is hereby

rep(j}aled, but any order in council in force under that act

shall continue as if it had been made in pursuance of this

act.

(6) This act shall be and remain in force until the first

day of July, 1895.

Under section 1 of the foregoing act an imperial order in

council was passed.

EXHIBIT 9.

Award of the Tribunal of Arbitration Constituted under the

Treaty Concluded at Washington, the 29th of February,

1892, Between the United States of America and Her

Majesty the Queen of the United Kingdom of Great

Britain and Ireland.

Whereas by a treaty between the United States of Amer-

ica and Great Britain, signed at Washington, February 29,

1892, the ratifications of which by the Governments of

the two countries were exchanged at London on May 7,

1892, it was, amongst other things, agreed and concluded

that the questions which had arisen between the Govern-

ment of the United States of America and the Government

of Her Britannic Majesty, concerning the jurisdictional

rights of the T'nited States in the waters of Bering Sea, and

concerning also the preservation of the fur seal in or habit-

ually resorting to the said sea, and the rights of the citizens

and subjects of either country as regards the taking of fur

seals in or habitually resorting to the said waters, should

be submitted to a Tribunal of Arbitration to be composed

of seven arbitrators, who should be appointed in the fol-

lowing manner, that is to say: two should be named by

the President of the United States; two should be named

by Her Britannic ^lajesty; His Excellency the President of

36 The Favourite.

the French Ee]mblie should ho .iointlv requested by the

hig-h pontraetiiig parties to name one; ITis Majesty the King

of Italy should be so requested to name one; His Majesty

the King of Sweden and Norway should be so requested to

name one; the seven arbitrators to be so named should be

jurists of distinguished reputation in their respective coun-

tries, and the selecting powers should be requested to

choose, if possible, jurists who are acquainted with the Eng-

lish language;

And whereas it was further agreed by Article II of the

said treaty that the arbitrators should meet at Paris within

twenty daj's after the delivery of the counter cases men-

tioned in Article TV, and should proceed inii)artially and

carefully to examine and decide the questions which had

been or should be laid before them as in the said treaty pro-

vided on the part of the Governments of the United States

and of Her Britannic Majesty respectively, and that all

questions considered by the tribunal, including the final de-

cision, should be determined by a majority of all the arbi-

trators;

And whereas by Article VI of the said treaty, it was fur-

ther provided as follows:

In deciding the matter submitted to the said arbitrators,

it is agreed that the following five points shall be submitted

to tliciii in order that tlieir award shall embrace a distinct

decision up-on each of said live points, to wit:

1. What exclusive jurisdiction in the sea now known as

the Bering Sea, and what exclusive rights in the seal fish-

eries therein, did Russia assert and exercise prior and up

to the time of the cession of Alaska to the United States?

2. How far were these claims of jurisdiction as to the

seal fisheries recognized and conceded hy Great Britain?

3. Was the body of water now known as the Bering Sea

included in the phrase, Pacific Ocean, as used in the treaty

of 1825 between Great Britain and Russia; and what rights,

if any, in the Bering Sea were held and exclusively exercised

by Russia after said treaty?

Appendix to the Answer. '37

4. Did not all the rights of Russia as to jurisdiction and

as to the seal fisheries in Bering Sea east of the water boun-

dary, in the treaty between the United States and Russia,

of the 30th of March, 1867, pass unimpaired to the United

States under that treaty?

5. Has the United States any right, and if so, what right

of protection or property in the fur seals frequenting the

islands of the United States in Bering Sea when such seals

are found outside the ordinary three-mile limit?

And whereas, by Article VII of the said treaty, it was fur-

ther agreed as follows

:

If the determination of the foregoing questions as to the

exclusive jurisdiction of the United States shall leave the

subject in such position that the concurrence of Great

Britain is necessary to the establishment of regulations for

the pro])er protection and preservation of the fur seal in or

habitually resorting to the Bering Sea, the arbitrators shall

then determine what concurrent regulations, outside the

jurisdictional limits of the respective Governments, are nec-

essary, and over what waters such regulations should ex-

tend;

The high contracting parties furthermore agree to co-

operate in securing the adhesion of other powers to such

regulations

;

And whereas, by Article VIII of the said treaty, after re-

citing that tlie high contracting ])arties had found them-

selves unal^le to agree upon a reference which should in-

clude the question of the liability of each for the injuries

alleged to have been sustained by the other, or by its citi-

zens, in connection with the claims presented and urged by

it, and that "they were solicitous that this subordinate ques-

tion should not interrupt or longer delay the submission and

determination of the main questions," the high contracting

]iarties agreed that "either of them might submit to the ar-

bitrators any question of fact involved in said claims and

ask for a finding thereon,. the question of the liability of

38 The Favourite.

either Government upon the facts found to be the subject of

further negotiation ; '

'

And whereas the President of the United States of Amer-

ica named the Hon. John ]\r. Harlan, justice of the Supreme

Court of the United States, and the Hon. Jolm T. INForgan,

Senator of the United States, to be two of the said arbitra-

tors, and Her Britannic Majesty named the Right Hon.

Lord Hannen and the Hon. Sir John Thompson, minister of

justice and attorney-general for (ânada, to be two of the

said arbitrators, and His Excellency, the President of the

French Republic, named the Baron de Courcel, senator, am-

bassador of France, to be one of the said arbitrators, and

His Majesty, the King of Italy, named the Marquis Emilio

Visconti Venosta, former minister of foreign affairs and

senator of the Kingdom of Italy, to be one of the said arbi-

trators, and His Majesty, the King of Sweden and Norway,

named Mr. Gregers Gram, minister of state, to be one of the

said arbitrators;

And whereas we, the said arbitrators, so named and a])-

pointed, having taken upon ourselves the burden of the said

arbitration, and having duly met at Paris, proceeded im-

partially and carefully to examine and decide all the ques-

tions submitted to us, the said arbitrators under the saiil

treaty, or laid before us as provided in the said treaty on

the part of the Governments of Her Britannic Majesty and

the United States, respectively

;

Now we, the said arbitrators, having im])artially and

carefully examined the said (piestions, do in like mannerby this our award decide and determine the said questions

in manner following, that is to say, we decide and deter-

mine as to the five ])oints mentioned in Article VI as to

which our award is to embrace a distinct decision u])on each

of them:

As to the first of the said five points, we, the said Baronde Courcel, Mr. Justice Harlan, Lord Hannen, Sir JohnThom])son, Marquis Visconti Venosta, and Afr. GregersGram, being a majority of the said arbitrators, do decide

and determine as follows:


By the ukase of 1821, Eussia claimed jurisdiction in the

sea now known as the Bering's Sea to the extent of 100 Ital-

ian miles from the coasts and islands belonging to her, but,

in the course of the negotiations which led to the conclusion

of the treaties of 1S24 with the United States and of 1825

with Great Britain, Russia admitted that her jurisdiction in

the said sea should be restricted to the reach of cannot shot

from shore, and it appears that, from that time up to the

time of the cession of Alaska to the United States, Russia

never asserted in fact or exercised any exclusive jurisdic-

tion in Bering's Sea or any exclusive rights in the seal fish-

eries therein beyond the ordinarj^ limit of territorial waters.

As to the second of the said five points, we, the said Baron

de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John

Thompson, Marquis Visconti Venosta, and Mr. Gregers

Gram, being a majority of the said arbitrators, do decide

and determine that Great Britain did not recognize or con-

cede any claim upon the part of Russia to exclusive juris-

diction as to the seal fisheries in Bering Sea outside of

ordinary territorial waters.

As to the third of the said five points, as to so muchthereof as requires us to decide whether the body of water

now known as the Bering Sea was included in the phrase

"Pacific Ocean" as used in the treaty of 1825 between Great

Britain and Russia, we, the said arbitrators, do unani-

mously decide and determine that the body of water nowknown as the Bering Sea was included in the phrase "Pa-cific Ocean," as used in the said treatv.

And as to so much of the said third point as requires us

to decide what rights, if any, in the Bering Sea were held

and exclusively exercised by Russia after the said treaty of

1825, we, the said Baron de Courcel, Mr. Justice Harlan.

Lord Hannen, Sir John Thom]ison, Marquis Visconti Vnosta, and Mr. Gregers Gram, l)eing a nuijoi-ity of the said

arbitrators, do decide and determine that no exclusive right

of jurisdiction in Bering Sea and no exclusive rights a^ to

the seal fisheries therein were held or exercised bv Rn '

40 The Favourite.

outside of ordiiiary territorial ^Yaters after the treaty of

1825.

As to tlie fourth of the said five points, we, the said arbi-

trators, do unanimously decide and determine that all the

rights of Rnssia as to jurisdiction and as to the seal fish-

eries in Bering Sea east of the ^Yater boundary, in the treaty

between the United States and Russia of the 30th March,

1867, did pass unimpaired to the United States under the

said treaty.

As to the fifth of the said five points, we, the said Baron

de Courcel, Lord liannen. Sir John Thompson, Marquis

Visconti Venosta and Mr. Gregers Gram, being a majority

of the said arbitrators, do decide and determine that the

United States has not any right of protection or property

in the fur seals frequenting the islands of the United States

in Bering Sea, when such seals are found outside the ordi-

nary three-mile limit.

And whereas the aforesaid determination of the foregoing

questions as to the exclusive jurisdiction of the United

States mentioned in Article VI leaves the subject in such a

position that the concurrence of Great Britain is necessary

to the establishment of regulations for the proper protection

and preservation of the fur seal in or habitually resorting

to the Bering Sea, the tribunal having decided by a majority

as to each article of the following regulations, we, the said

Baron de Courcel, Lord TTannen, Marquis Visconti Venosta,

and Mr. Gregers Gram, assenting to the whole of the nine

articles of the following regulations, and being a majority

of the said arbitrators, do decide and determine in the modeprovided by the treaty, that the following concurrent regu-

lations outside the jurisdictional limits of the res])ective

Governments are necessary and that they slionld extend

over the watei-s hereinafter mentioned, tlial is to say:

Article 1.

The Governments of the United States and of Great

Britain shall forbid their citizens and subjects respectively.

Appendix to trie Answer. 41

to kill, capture, or pursue at any time and in any manner

whatever, the animals commonly called fur seals, within a

zone of sixty miles around the Pribilof Islands, inclusive of

the territorial waters.

The miles mentioned in the preceding paragraph are geo-

graphical miles of sixty to a degree of latitude.

Aktici.e 2.

The two Governments shall forbid their citizens and sub-

jects, respectively, to kill, capture, or pursue, in any manner

whatever, during the season extending, each year, from the

1st of May to the 31st of July, both inclusive, the fur seals

on the high sea, in the part of the Pacific Ocean, inclusive of

the Behring Sea, which is situated to the north of the 35th

degree of north latitude, and eastward of the 180th degree of

longitude from Greenwich till it strikes the water boundary

described in article 1 of the treaty of 1867 between the

United States and Russia, and following that line up to

Behring Straits.

Aeticle 3.

During the period of time and in the waters in which the

fur-seal fishing is allowed, only sailing vessels shall be per-

mitted to carry on or take part in fur-seal fishing operations.

They will, however, be at liberty to avail themselves of the

use of such canoes or undecked boats, propelled by paddles,

oars, or sails, as are in common use as fishing boats.

Aeticle 4.

Each sailing vessel authorized to fish for fur seals must

be provided with a s]êcial license issued for that purpose byits Government and shall be required to carry a distinguish-

ing flag, to be prescribed by its Government.

Article 5.

The masters of the vessels engaged in fur-seal fishing shall

enter accurately in their official log book the date and place

42 The Favourite.

of oach fur-seal fishing operation, and also the number and

sex of the seals captured n]ion each daj^ These entries shall

be connnunicated by each of the two Governments to the

other at the end of each fishing season.

Article 6.

The nse of nets, firearms and explosives shall be forbid-

den ill tlie fur-seal fishing. Tliis restriction shall not apply

to sliotgiins when such iishing takes place outside of Belir-

ing's Sea during the season when it may be lawfully car-

ried on.

Article 7.

The two Governments shall take measures to control the

fitness of the men authorized to engage in fur-seal fishing;

these men shall have been proved fit to handle with suffi-

cient skill the weapons by means of which this fishing maybe carried on.

Article 8.

The regulations contained in the preceding articles shall

not a])ply to Indians dwelling on the coasts of the territory

of the United States or of Great Britain, and carrying on

fur-seal fishing in canoes or undecked boats not transported

l)y or used in connection witli otlier vessels and propelleil

wholly by paddles, oars, or sails, and manned by not more

than five persons each in the way hitherto practised by the

Indians, provided such Indians are not in the employment

of other ])ersons, and provided that, when so hunting in

canoes or undecked boats, they shall not liunt fur seals

outside of territorinl waters under coutrnct for the delivery

of the skins to any i)erson.

Tliis exenii)tion siuill not be construed to affect the niunic-

inal law of either country, nor shall it extend to flie waters

of Bf^brir'g Sea or the waters of the Aleutian Passes.

Nothing herein contained is intended to interfere with

the employment of Indians as hunters or otherwise in con-

nection with fur-sealing vessels as heretofore.


Akticle 9.

The concurrent regulations hereby determined with a

view to the protection and preservation of the fur seals

shall remain in force until they have been, in whole or in

part, abolished or modified by common agreement between

the Governments of the United States and of Great Britain.

The said concurrent regulations shall be submitted every

five years to a new examination, so as to enable both inter-

ested Governments to consider whether, in the light of past

experience, there is occasion for any modification thereof.

And whereas the Government of Her Britannic Majesty

did submit to the Tribunal of Arbitration by Article VIII of

the said treaty certain questions of fact involved in the

claims referred to in the said Article VIII, and did also

submit to us, the said tribunal, a statement of the said facts,

as follows, that is to say:

Findings of Fact Proposed by the Agent of Great Britain

and Agreed to as Proved by the Agent for the United

States, and Submitted, to the Tribunal of Arbitration for

its Consideration.

]. That the several searches and seizures, whether of

ships or goods, and the several arrests of masters and

crews, respectively mentioned in the schedule to the British

case, pages I to 60, inclusive, were made by the authority

of the United States Government. The questions as to the

value of the said vessels or their contents, or either of them,

and the question as to whether the vessels mentioned in the

schedule to the British case, or any of them, were wholly

or in part the actual ])roperty of citizens of the United

States, have been withdrawn from and have not been con-

sidered by the tribunal, it being understood that it is opento the United States to raise these questions or any of them,

if they think lit, in any future negotia^tions as to the liability

of the United States Government to pay the amounts men-tioned in the schedule to the British case

;

44 The Favourite.

2. That the seizures aforesaid, with the exception of the

PatJifiudcr seized at Neah-Bay, were made in Bering Sea

at the distances from shore mentioned in the schedule an-

nexed hereto, marked C

;

3. That the said several searches and seizures of vessels

were made by public armed vessels of the United States, the

commanders of which had, at the several times when they

were made, from the Executive Department of the Govern-

Miont of the United States, instructions, a copy of one of

which is annexed hereto, marked A, and that the others

were, in all substantial respects, the same; that in all the

instances in which proceedings were had in the district

courts of the United States resulting in condemnation, such

proceedings were begun by the filing of libels, a copy of one

of which is annexed hereto, marked B, and that the libels

in the other proceedings were in all substantial respects the

same ; that the alleged acts or offenses for which said several

searches and seizures were made were in each case done or

committed in Bering Sea at the distances from shore afore-

said; and that in each case in which sentence of condemna-

tion was passed, except in those cases when the vessels were

released after condemnation, the seizure was adopted by the

Government of the United States; and in those cases in

which the vessels were released the seizure was made by

the authority of the United States ; that the said fines and

imi)risonments were for alleged breaches of the municipal

laws of the United States, which alleged breaches were

wholly committed in Bering Sea at the distances from the

shore aforesaid.

4. That the several orders mentioned in the schedule an-

nexed hereto and maiked C, warning vessels to leave or

not to enter Bering Sea were made by public armed vessels

of the United States, the commanders of which had, at the

several times when they were given, like instructions as

mentioned in lindiug 8, and lliat the vessels so warned were

engaged in sealing or prosecuting voyages for that purpose,


and that such action was adopted hy the Government of the

United States.

5. That the district courts of the United States in which

any proceedings were had or taken for the purpose of con-

demning any vessel seized as mentioned in the schedule to

the case of Great Britain, pages 1 to 60, inclusive, had all

the jurisdiction and powers of courts of admiralty, in-

cluding the prize jurisdiction, but that in each case the sen-

tence pronounced by the court was based upon the grounds

set forth in the libel.

EXHIBIT 10.

Behring Sea Award Act, 1894.

Chapter 2.—An Act to provide for carrying into effect the

award of the Tribunal of Arbitration constituted under a

treaty between Her Majesty the Queen and the United

States of America. (23rd April, 1894.)

AVhereas by a treaty between Her Majesty the Queen and

the Government of the United States of America various

questions which had arisen respecting the taking and pres-

ervation of the fur seal in the North Pacific were referred

to arbitrators as mentioned in the treaty:

And whereas the award of such arbitrators (in this act

referred to as the Bohring Sea Arbitration award), dated

the fifteenth day of August, one thousand eight hundred

and ninety-three, contained the provisions set out in the

first schedule to this act; and it is expedient to provide for

carrying the same into effect

:

Be it therefore enacted, by the Queen's most Excellent

Majesty, by and with the advice and consent of the LordsSpiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as

follows

:

46 The Favouriie.

1. (1) The ])rovisions of the Behring Sea Arl)itratioil

Award set out in the first schedule to this act shall have

effect as if those provisions (in this act referred to as the

scheduled provisions) were enacted by this act, and the acts

directed by articles one and two thereof to be forbidden

were expressly forbidden hy this act.

(2) If there is any contravention of this act, any person

committing, procuring, aiding, or abetting such contraven-

tion shall be guilty of a misdemeanor within the meaning

of the merchant shipping act, 1854, and the ship employed

ill such contravention and her equipment, and everything

on board thereof, shall be liable to be forfeited to Her

Majesty as if an offence had been committed under section

one hundred and three of the said act; Provided, that the

court, without prejudice to any other power may release

the ship, equipment, or thing on payment of a fine not ex-

ceeding five hundred pounds.

(3) The provisions of the merchant shipping act, 1854,

with respect to official logs (including the penal provisions)

shall apply to every vessel engaged in fur seal fishing.

(4) Every person who forges or fraudulently alters any

licence or other document issued for the purpose of article

four or of article seven in the first schedule to this act, or

who procures any such licence or document to be forged or

fraudulently altered, or who knowing any such licence or

document to be forged or fraudulently altered uses the

same, or who aids in forging or fraudulently altering any

such licence or document, shall be guilty of a misdemeanor

within the meaning of the merchant shipping act, 1854.

(5) Subject to this act, the provisions of sections one

hundred and three and one inindied and four and })art ten

of the merchant shi])i)ing act, 1854, and of section thirty-

four of the merchant shipping act, 1876, which are set out

in the second schedule to this act, shall apply as if they were

herein reenacted, and in terms made a]>]>licable to an of-

fence and forfeiture under this act ; and any commissioned


officer on full pay in the naval service of Her Majesty the

Queen may seize the ship's certificate of registry.

2. (1) Where an officer seizes, under this act, a ship's

certificate of registry, he shall either retain the certificate

and give a provisional certificate in lieu thereof, or return

the certificate with an indorsement of the grounds on which

it was seized, and in either case shall direct the ship, by an

addition to the provisional certificate or to the indorse-

ment, to proceed forthwith to a specified port, being a port

where there is a British court having authority to adjudi-

cate in the matter, and if this direction is not complied with,

the owner and master of the ship shall, without prejudice to

any other liability, each be liable to a fine not exceeding one

hundred pounds.

(2) Where in pursuance of this section a provisional cer-

tificate is given to a ship, or the ship's certificate is in-

dorsed, any officer of customs in Her Majesty's dominions

or British consular officer may detain the ship until satis-

factory security is given for her appearance in any legal

proceedings which may be taken against her in pursuance

of this act.

o. (1) Her Majesty the Queen in council may make, re-

voke, and alter orders for carrying into effect the scheduled

])rovisions, and this act and every such order shall be forth-

with laid before both houses of Parliament and published

in the London Gazette, and shall have effect as if enacted

in this act.

(2) If there is any contravention of any regulation madeby any such order, any person committing, procuring, aid-

ing, or abetting such contravention shall be liable to a pen-

alty not exceeding one hundred pounds.

(3) An order in council under this act may provide that

such officers of the United States of America as are speci-

fied in the order may, in respect of offences under this act,

exercise the like powers under this act as may be exercised

by a commissioned officer of Her Majesty in relation to a

48 The Favourite.

British ship, and the equipiiu'iit and certificate thereof, or

snoh of those powers as appear to Her Majesty in council

to be exercisabh^ nn(hn- the haw of the United States of

America against ships of the United States ; and that such

British officers as are specified in the order may exercise the

powers conferred by this act, with any necessary modifica-

tions specified in the order, in relation to a ship of the

United States of America, and the equipment and certificate

thereof.

4-. (1) Where any offence under this act has been com-

mitted by some person belonging to a ship, or by means of

a ship, or the equipment of a ship, the master of the ship

shall be deemed guilt}^ of such btfence, and the ship and her

equipment shall be liable to forfeiture under this act;

(2) Provided that if it is proved that the master issued

proper orders for the observance, and used due diligence

to enforce the observance of this act, and the regulations in

force thereunder, and that the- offense in question was

actually committed by some other person without his con-

nivance, and that the actual offender has been convicted, or

that he has taken all x>roper means in his power to prose-

cute such offender, if alive, to conviction, the master or the

ship shall not be liable to any penalty or forfeiture other

than such sum as will prevent any profit accruing by reason

of the offense to the master or crew or owner of the ship.

5. The expression "equipment" in this act includes any

boat, tackle, fishing or shooting instruments, and other

things belonging to a ship.

6. This act may be cited as the Behring Sea award act,

1894.

7. (1) This act shall come into operation on the first day

of May, one thousand eight hundred and ninety-four, pro-

vided that ITer Majesty in Council, if at any liiu(^ it appears

expedient so to do, having regard to the circumstances

which have then arisen in relation to the scheduled provis-


ions or to the enforcement thereof, may suspend the opera-

tion of this act or any part thereof during the period men-

tioned in the order, and the same sliall be suspended ac-

cordingly.

(2) Where on any proceeding in any court against a

person or ship in respect of any offense under this act it is

proved that the ship sailed from its port of departure before

the provisions of the award mentioned in the first schedule

to this act were known there, and that such person or the

master of the ship did not, after such sailing and before the

alleged offence, become aware of those provisions, such per-

sons shall be acquitted, and the ship shall be released andnot forfeited.

8. This act shall remain in force so long as the scheduled

provisions remain in force and no longer

;

Provided, That if, by agreement between Her Majesty the

Queen and the Government of the United States of Amer-ica, the scheduled provisions are modified, then Her Majestyin Council may order that this act shall, subject to any modi-

fications specified in the order, apply, and the same shall

accordingly apply, to the modified provisions in like manneras if they were set out in the first schedule to this act.

SCHEDULES.

First Schedule.

Provisions in Aivard of the Tribunal of Arbitration Consti-

tuted under the Treaty Concluded at Washington on the

29th of February, 1892, betiveen Her Majesty the Queenand the United States of America.

And whereas the aforesaid determination of the fore-

going questions as to the exclusive jurisdiction of the UnitedStates mentioned in Article VI leaves the subject in such a

position that the concurrence of Great Britain is necessary

to the establishment of regulations for the proper protection

50 The Favourite.

and preservation oi" the fnr seal in or habitually resorting to

the Behring Sea, the tribunal having decided by a majority

as to each article of the following regulations, we the said

Baron de Courcel, Lord Hannen, Marquis Visconti Venosta,

and Mr. Gregers Gram, assenting to the whole of the nine

articles of the following regulations, and being a majority

of the said arbitrators, do decide and determine in the mode

provided by the treaty that the following concurrent regula-

tions outside the jurisdictional limits of the respective gov-

ernments are necessary, and that they should extend over

the waters hereinafter mentioned ; that is to say

:

Article 1. The Governments of the United States and of

Great Britain shall forbid their citizens and subjects, re-

spectively, to kill, capture, or pursue at any time and in

any manner whatever the animals commonly called fur

seals, within a zone of 60 miles around the Pribilof Islands,

inclusive of the territorial waters.

The miles mentioned in the preceding paragraph are geo-

graphical miles, of 60 to a degree of latitude.

Article 2. The two Governments shall forbid their citi-

zens and subjects, respectively, to kill, capture, or pursue,

in any manner whatever, during the season extending each

year from the 1st May to the 31st July, both inclusive, the

fui' seals on the high sea in the part.of the Pacilic Ocean,

inclusive of the Behring Sea, which is situated to the north

of the 35th degree of north latitude, and eastward of the

180th degree of longitude from Greenwich till it strikes the

water boundary described in Article I of the treaty of 1867

between the United States and Russia, and following that

line up to Behring Straits.

Article 3. During the period of time and in the waters in

which the fur-seal hshing is allowed, only sailing vessels

shall be permitted to carry on or take part in fur-seal fish-

ing operations. They will, however, be at liberty to avail

themselves of the use of such canoes or undecked boats,

propelled by paddles, oars or sails, as are in common use

as fishing boats.


Article 4. Each sailing vessel authorised to fish for fur

seals must be provided with a special licence, issued for that

purpose by its Government, and shall be required to carvy a

distinguishing flag to be prescribed by its Government.

Article 5. The masters of the vessels engaged in fur-seal

fishing shall enter accurately in their official log book the

date and place of each fur-seal fishing operation, and also

the number and sex of the seals captured upon each day.

These entries shall be communicated by each of the two Gov-

ernments to the other at the end of each fishing season.

Article 6. The use of nets, firearms, and explosives shall

be forbidden in the fur-seal fishing. This restriction shall

not apply to shotguns when such fishing takes place outside

of Behring's Sea dui'iug the season when it may be lawfully

carried on.

Article 7. The two Governments shall take measures to

control the fitness of the men authorised to engage in fur-

seal fishing. These men shall have been |)roved fit to handle

with sufficient skill the weapons by means of which this fish-

ing may be carried on.

Article 8. The regulations contained in the preceding

articles shall not apply to Indians dwelling on the coasts of

the territory of the United States or of Great Britain, and

carrying on fur-seal fishing in canoes or undecked boats, not

transported by or used in connexion with other vessels, and

propelled wholly by i)addles, oars, or sails, and manned by

not more than five persons each, in the way hitherto prac-

ticed by the Indians, provided such Indians are not in the

employment of other persons, and provided that, when so

hunting in canoes or undecked boats, they shall not hunt

fur seals outside of territorial waters under contract for the

delivery of the skins to any person.

This exemption shall not be construed to atfect the munic-

iiml law of either country, nor shall it extend to the waters

of Behring Sea or the waters of the Aleutian Passes.

52 The Favourite.

Nothing herein contained is intended to interfere with the

employment of Indians as hnnters or otherwise in connec-

tion with fur-sealing vessels as heretofore.

Article 9. The concurrent regulations hereby determined,

with a view to the protection and i)reservation of the fur

seals shall remain in force until they have been, in whole or

in part, abolished or modified by common agreement be-

tween the Governments of the TTnited States and of Great

Britain.

The said concurrent regulations shall be submitted every

five years to a new examination, so as to enable both inter-

ested Governments to consider whether, in the light of past

experience, there is occasion for any modification thereof.

Second Schedule.

Enactments of merchant shipping act {17 and 18 Vict.,

c. 104) applied.

Section 103. * * * ^j^j ^^ order that the above pro-

visions as to forfeitures may be carried into effect, it shall

be lawful for any commissioned officer on full pay in the

military or naval service of Her Majesty, or any British

officer of customs, or any British consular officer, to seize

and detain any shi]i wliiHi has, either wholly or as to any

share therein, become subject to forfeiture as aforesaid, and

to bring her for adjudication before the high court of ad-

miralty in England or Ireland, or any court having admi-

ralty jurisdiction in ller Majesty's dominions; and suchcourt may thereupon make such order in the case as it maythink fit, and may award to the officer bringing in the samefor adjiidic'ilion sudi porjion of Die pi-oceeds of the sale of

any foi-feited ship or share as it may think right.

Section 104. No such officer as aforesaid shall be respon-

sible, either civilly or criminally, to any person whomsoever,in respect of the seizure or detention of any ship that hasbeen seized or detained by him in pursuance of the provis-


ions herein contained, notwithstanding that such ship is not

brought in for adjudication, or, if so brought in, is declared

not to be liable to forfeiture, if it is shown to the satisfaction

of the judge or court before whom any trial relating to such

ship or such seizure or detention is held that there were

reasonable grounds for such seizure or detention ; but if no

such grounds are shown, such judge or court may award

payment of costs and damages to any party aggrieved, and

make such other order in the premises as it thinks just.

Paet X.

—

Legal Proceduee.

Application.

Section 517. The tenth part of this act shall, in all cases

where no particular country is mentioned, apply to the

whole of Her Majesty's dominions.

Legal procedure {general).

Section 518. In all places within Her Majesty's domin-

ions, except Scotland, the offences hereinafter mentioned

shall be punished and penalties recovered in manner follow-

ing (that is to say)

:

(1) Every offence by this act declared to be a misde-

meanor shall be punishable by fine or imprisonment, with

or without hard labour, and the court before which such of-

fence is tried may, in England, make the same allowances

and order payment of the same costs and expenses as if such

misdemeanor had been enumerated in the act passed in the

seventh year of His late Majesty King George the Fourth,

chapter sixty-four, or any other act that may be passed for

the like ]nirpose, and may, in any other part of Her Majes-

ty's dominions, make such allowances and order payment of

such costs and expenses (if any) as are payable or allowable

upon the trial of any misdemeanor under any existing act

or ordinance or as may be payable or allowable under any

act or law for the time being in force therein:

54 The Favourite.

(2) Every offence declared by this act to be a misde-

meanor shall also be deemed to be an offence hereby madepunishable by imprisonment for any period not exceeding-

six mouths, with or without hard labour, or by a penalty not

exceeding one hundred pounds, and may be prosecuted ac-

cordingly in a summary manner instead of being piosecuted

as a misdemeanor

:

(3) Every offence hereby made punishable by imprison-

ment for any period not exceeding six months, with or with-

out hard labour, or by any penalty not exceeding one hun-

dred pounds, shall, in England and Ireland, be prosecuted

summarily before any two or more justices, as to England

in the manner directed by the act of the eleventh and twelfth

years of the reign of Her Majesty Queen Victoria, chapter

forty-three, and as to Ireland in the manner directed by the

act of the fourteenth and fifteenth years of the reign of Iler

Majesty Queen Victoria, chapter ninety-three, or in such

other manner as may be directed by any act or acts that

maj^ be passed for like purposes. And all provisions con-

tained in the said acts shall be applicable to such prosecu-

tions in the same manner as if the offences in respect of

which the same are instituted were hereby stated to be of-

fences in respect of which two or more justices have power

to convict summarily or to make a summary order.

(4) In all cases of summary convictions in England,

where the sum adjudged to be paid exceeds five ]iounds, or

the period of imprisonment adjudged exceeds one month,

any person who thinks himself aggrieved by such conviction

may appeal to the next court of general or quarter sessions.

(5) All offences under this act shall, in nny British pos-

session, be punishable in any court or by any justice of the

peace or magistrate in which or by whom offences of like

character are ordinarily punishable or in such other man-

ner, or by such other courts, justices, or magistrates as mayfrom time to time be determined by any act or ordinance

duly made in such possession in such manner as acts and


ordinances in such possession are required to be made in

order to have the force of law.

Section 519. Any stipendiary magistrate shall have full

power to do alone whatever two justices of the peace are by

this act authorized to do.

Section 520. For the purpose of giving jurisdiction under

this act, every oiTence shall l)e deemed to have been com-

mitted, and every cause of complaint to have arisen, either

in the place in which the same actually was committed or

arose, or in any place in which the offender or person com-

plained against may be.

Section 521. In all cases where any district within which

any court or justice of the peace or other magistrate has

jurisdiction, either under this act or under any other act or

at common law, for any purpose whatever, is situate on the

coast of any sea, or abutting on or projecting into any bay,

channel, lake, river, or other navigable water, every such

court, justice of the peace, or magistrate shall have jurisdic-

tion over any ship or boat being on or lying or passing off

such coast, or being in or near such bay, channel, lake, river,

or navigable water as aforesaid, and over all persons on

board such ship or boat or for the time being belonging

thereto, in the same manner as if such ship, boat, or persons

were within the limits of the original jurisdiction of such

court, justice, or magistrate.

Section 522. Service of any summons or other matter in

any legal proceeding under this act shall be good service, if

made personally on the person to be served, or at his la

4

]ilace of abode, or if made by leaving such summons for

him on board any ship to which he may belong with the per-

son being or appearing to be in command or charge of such

ship.

Section 523. In all cases where any court, justice, or jus-

tices of the peace, oi- other magistrate, has or have ]iower

to make an order directing payment, to be made of any sea-

man's wages, penalties, or other sums of money, then, if the

56 The Favourite.

party so directed to pay the same is the master or owner of

a ship, a7id tlie same is not paid at the time and in manner

prescribed in tlie order, the court, justice, or justices, or

other magistrate, who made the order, may, in addition to

any other powers they or he may have for the ]Hirpose of

compelling ]>ayment, direct the amount remaining unpaid

to be levied by distress or poinding and sale of the said ship,

her tackle, furniture, and apparel.

Section 524. Any court, justice, or magistrate imposing

any penalty under this act, for which no specific application

is herein provided, may, if it or he thinks fit, direct the

whole or any part thereof to be applied in compensating

"any person for any wrong or damage which he may have

sustained by the act or default in respect of which such pen-

alty is imposed, or to be applied in or towards payment of

the expenses of the proceedings ; and, subject to such direc-

tions or specific application as aforesaid, all penalties recov-

ered in the United Kingdom shall be paid into the receipt of

Her Majesty's exchequer in such manner as the treasury

may direct, and shall be carried to and form part of the con-

solidated fund of the United Kingdom; and all penalties

recovered in any British possession shall be paid over into

the public treasury of such possession, and form part of the

pul)lic revenue thereof.

Section 525. The time for instituting sununary proceed-

ings under this act shall be limited as follows (that is to

say) :

(1) No conviction for any offense shall be made under

this act in any summai-y i)T'oceeding instituted in the United

Kingdom, unless such proceeding is commenced within six

months after the commission of the offence; or. il" both or

eithei- of the parties to such ])roceeding linppcii during such

time 1o 1)(' out of llie I'liihMl Kingdom, iiiilos tlic same is

commL'iK'iMl wit hill two mouths after they l)oth first happen

to arrive or to be at one time within the same;


(2) No conviction for any offence shall be made under

this act in any proceeding instituted in any British posses-

sion, unless such proceeding is commenced within six

months after the commission of the offence; or, if both or

either of the parties to the proceeding happen during such

time not to be within the jurisdiction of any court capable

of dealing with the case, unless the same is commenced

within two months after they both first happen to arrive or

'to be at one time within such jurisdiction

;

(3) No order for the payment of money shall be made

under this act in any summary proceeding instituted in the

United Kingdom, unless such proceeding is commenced

within six months after the cause of complaint arises ; or, if

both or either of the parties happen during such time to be

out of the United Kingdom, unless the same is commenced

within six months after they both first happen to arrive or

to be at one time within the same

;

(4) No order for the payment of money shall be madeunder this act in any summary proceeding instituted in any

British possession, unless such proceeding is commenced

within six months after the cause of complaint arises ; or,

if both or either of the parties to the proceeding happen

during such time not to be within the jurisdiction of any

court capable of dealing with the case, unless the same is

commenced within six months after they both first happen

to arrive or be at one time within such jurisdiction.

And no provision contained in any other act or acts, ordi-

nance or ordinances for limiting the time within which sum-

mary proceedings may be instituted, shall affect any sum-

mary proceeding under this act.

Section 526. Any document required by this act to be

executed in the presence of or to be attested by any witness

or witnesses, may be proved by the evidence of any person

who is able to bear witness to tlio requisite facts, without

calling the attesting witness or witnesses or any of them.

Section 527. Whenever any injury has, in any part of the

58 > The Favourite.

world, been caused to any property belonging* to Her

Majesty or to any of Her Majesty's snl^jects b}^ any foreign

ship, if at any time thereafter such ship is found in any port

or river of the United Kingdom or within three miles of the

coast thereof, it shall be lawful for the judge of any court

of record in the United Kingdom, or for the judge of the

iiigh court of admiralty, or in Scotland the court of session,

or the sheriff of the county within whose jurisdiction such

ship may be, upon its being shown to him by any person

applying summarily that such injury was probably caused

by the misconduct or want of skill of the master or mariners

of such ship, to issue an order directed to any officer of cus-

toms or other officer named by such judge, requiring him to

detain such ship until such time as the owner, master, or

consignee thereof has made satisfaction in respect of such

injury, or has given security, to be approved by tho judge,

to abide the event of any action, suit, or other legal proceed-

ing that may be instituted in respect of such injury, and to

pay all costs and damages that may be awarded thereon;

and any officer of customs or other officer to whom such

order is directed shall detain such ship accordingly.

Section 528. In any case where it appears that before

any application can be made under the foregoing section

such foreign ship will have departed beyond the limits

therein mentioned, it shall be lawful for any commissioned

officer on full pay in the military or naval service of Pier

Majesty, or any British officer of customs, or any British

consular officer, to detain such ship until such time as will

allow such application to be made and the result thereof to

be communicated to him; and no such officer shall be linble

for any costs or damages in respect of such detention unless

the same is proved to have been made without reasonable

grounds.

Section 529. In any action, suit, or other proceeding in

relation to such injury, the person so giving security as

aforesaid shall be made defendant or defender and shall be

Appendix to the Answei'. 59

stated to be the owner of the ship that has occasioned such

damage; and the production of tlie order of the judge made

in rehition to such security shall be conclusive evidence of

the liability of such defendant or defender to such action,

suit, or other proceeding.

Legal Procedure (Scotland).

Section 530. In Scotland every offence which by this act

is described as a felony or misdemeanor may be prosecuted

by indictment or criminal letters at the instance of Her

Majesty's advocate before the high court of justiciary, or

by criminal libel at the instance of the procurator fiscal of

the county, before the sheriff, and shall be punishable with

fine and with imprisonment, with or without hard labor in

default of payment, or with imprisonment, with or without

hard labor, or with both, as the court may think fit, or in the

case of felony with penal servitude, where the court is com-

petent thereto ; and such court may also, if it think fit, order

payment by the offender of the costs and expenses of the

prosecution.

Section 531. In Scotland, all prosecutions, complaints,

actions, or proceedings under this act, other than prosecu-

tions for felonies or misdemeanors, maj^ be brought in a

summary form before the sheriff of the county, or before

any two justices of the peace of the county or burgh where

the cause of such prosecution or action arises, or where the

offender or defender may be for the time, and when of a

criminal nature or for penalties, at the instance of the

procurator fiscal of court, or at the instance of any party

aggrieved, with concurrence of the procurator fiscal of

court; and the court may, if it think fit, order i)ayment by

the offender or defender of the costs of the prosecution or

action.

Section 532. In Scotland, all prosecutions, complaints,

actions, or other proceedings under this act may be brought

60 The Favourite.

either in a written or printed form, or partly written and

partly printed, and where such proceedings are brought in

a summary form it shall not be necessary in the complaint

to recite or set forth the clause or clauses of the act on which

such proceeding is founded, but it shall be sufficient to

specify or refer to such clause or clauses, and to set forth

shortly the cause of complaint or action and the remedy

sought; and when such complaint or action is brought in

whole or in part for the enforcement of a pecuniary debt or

demand, the complaint may contain a prayer for warrant to

arrest upon the dependence.

Section 533. In Scotland, on any complaint or other pro-

ceeding brought in a summary form under this act being

presented to the sheriff clerk or clerk of the peace, he shall

grant warrant to cite the defender to appear personally

before the said sheriff or justices of the peace on a day

fixed, and at the same time shall appoint a copy of the same

to be delivered to him by a sheriff officer or constable, as

the case may be, along with the citation; and such deliver-

ance shall also contain a warrant for citing witnesses and

havers to compear at the same time and place to give evi-

dence and produce such writs as may be specified in their

citation; and where such warrant has been prayed for in the

complaint or other proceeding, the deliverance of the sheriff

clerk or clerk of the peace shall also contain warrant to ar-

rest upon the dependence in common form : Provided al-

ways, that where the apprehension of any party, with or

without a warrant, is authorized by this act, such party maybe detained in custody until he can be brought at the earliest

opportunity before any two justices, or the sheriff who mayhave jurisdiction in the place, to be dealt with as this act

directs, nnd no citation or induciir shall in such case be nec-

essary.

Section 534. When it becomes necessary to execute such

arrestment on the dependence against goods or effects of

the defender within Scotland, but not locally situated within


the jurisdiction of the sheriff or justices of the peace by

whom the warrant to arrest has been granted, it shall be

competent to carry the warrant into execution on its being

indorsed by the sheriff clerk or clerk of the peace of the

county or burgh respectively within which such warrant

comes to be executed.

Section 535. In all proceedings under this act in Scot-

land the sheriff or justices of the peace shall have the same

power of compelling attendance of witnesses and havers as

in cases falling under their ordinary jurisdiction.

Section 536. The whole procedure in cases brought in a

summary form before the sheriff or justices of the peace in

Scotland shall be conducted viva voce, without written

pleadings, and without taking down the evidence in writing,

and no record shall be kept of the proceedings other than

the complaint, and the sentence or decree pronounced

thereon.

Section 537. It shall be in the power of the sheriff or

justices of the peace in Scotland to adjourn the proceedings

from time to time to any day or days to be fixed by them,

in the event of absence of witnesses or of any other cause

which shall appear to them to render such adjournment nec-

essary.

Section 538. In Scotland all sentences and decrees to be

pronounced by the sheriff or justices of the peace upon such

summary complaints shall be in writing ; and where there is

a decree for payment of any sum or sums of money against

a defender, such decree shall contain warrant for arrest-

ment, poinding, and imprisonment in default of payment,

such arrestment, poinding, or imprisonment to be carried

into effect by sheriffs, officers, or constables, as the case maybe, in the same manner as in cases arising under the ordi-

nary jurisdiction in the sheriff or justices : Provided always,

that nothing herein contained shall be taken or construed

to repeal or affect an act of the fifth and sixth years of Wil-

liam the Fourth, intituled ''An act for abolishing, in Scot-

land, imprisonment for civil debts of small amount."

62 The Favourite.

Section 539. In all summary complaints and proceedings

for recovery of any [)enalty or sum of money in Scotland,

if a defender who has been duly cited shall not appear at the

time and place required by the citation, he shall l)o held as

confessed, and sentence or decree shall be pronounced

against him in terms of the complaint, with such costs and

expenses as to the court shall seem fit : Provided always,

that he shall be entitled to obtain himself reponed against

any such decree at any time before the same be fully imple-

mented, by lodging with the clerk of court a reponing note,

and consigning in his hands the sum decerned for, and the

costs which had been awarded by the court, and on the same

day delivering or transmitting through the post to the pur-

suer or his agent a copy of such reponing note ; and a certifi-

cate by the clerk of court of such note having been lodged

shall operate as a sist of diligence till the cause shall have

been reheard and finally disposed of, which shall be on the

next sitting of the court, or on any day to which the court

shall then adjourn it.

Section 540. In all summary complaints or other proceed-

ings not brought for the recovery of any penalty or sum of

money in Scotland, if a defender, being duly cited, shall fail

to appear, the sheriff or justices may grant warrant to ap-

prehend and bring him before the court.

Section 541. In all cases where sentences or decrees of

the sheriff or justices require to be enforced within Scot-

land, but beyond the jurisdiction of the sheriff or justices

by whom such sentences or decrees have been pronounced,

it shall be competent to carry the same into execution upon

the same being indorsed by the sheriff clerk or clerk of the

peace of the county or burgh within which such execution is

to take place.

Section 542. No order, decree, or sentence pronouuced by

any sheriff or justice of the peace in Scotland under the au-

thority of this act shall be quashed or vacated foi- any mis-

nomer, informality, or defect of form; and all orders, de-


erees, and sentences so pronounced shall be final and conclu-

sive, and not subject to suspension, advocation, reduction,

or to any form of review or stay of execution, except on the

ground of corruption or malice on the part of the sheriff or

justices, in which case the suspension, advocation, or reduc-

tion must be brought within fourteen days of the date of the

order, decree, or sentence complained of: Provided always,

that no stay of execution shall be competent to the effect of

preventing immediate execution of such order, decree, or

sentence.

Section 543. Such of the general provisions with respect

to jurisdiction, procedure, and penalties contained in this

act as are not inconsistent with the special rules herein-

before laid down for the conduct of legal proceedings andthe recovery of penalties in Scotland, shall, so far as the

same are applicable, extend to such last mentioned proceed-ings and penalties: Provided always, that nothing in this

act contained shall be held in any way to annul or restrict

the common law of Scotland with regard to the prosecutionor punishment of offences at the instance or by the direction

of the lord advocate, or the rights of owners or creditors in

regard to enforcing a judicial sale of any ship and tackle,

or to give to the high court of admiralty of England anyjurisdiction in respect of salvage in Scotland which it hasnot heretofore had or exercised.

Enactment of Merchant Shipping Act, 1876 {39 and 40

Vict., c. 80), Applied.

Section 34. AVhere under the merchant shipping acts,

1854 to 1876, or any of them, a ship is authorized or orderedto be detained, any commissioned officer on full pay in thenaval or military service of Her Majesty, or any officer ofthe board of trade or customs, or any British consular offi-

cer may detain the ship, and if the ship after such detentionor after service on the master of any notice of or order for

64 The Favourite.

such detention proceeds to sea before it is released by com-

petent authority, the master of the ship, and also the owner,

and any person who sends the ship to sea, if such owner or

person be party or privy to the offence, shall forfeit and

pay to Her Majesty a penalty not exceeding one hundred

pounds.

Where a ship so proceeding to sea takes to sea when on

board thereof in the execution of his duty any officer author-

ized to detain the ship, or any surveyor or officer of the

board of trade or customs, the owner and nuxster of the ship

shall each be liable to pay all expenses of and incidental to

the officer or surveyor being so taken to sea, and also a

penalty not exceeding one hundred i)ounds, or, if the offence

is not prosecuted in a summary manner, not exceeding ten

pounds for every day until the officer or surveyor returns,

or until such time as would enable him after leaving the ship

to return to the port from which he is taken, and such ex-

penses may be recovered in like manner as the penalty.

EXHIBIT 11.

Order in Council, Issued under "The Behring Sea AwardAct, 1894,^' for Carrying into Effect the Provisions of the

Behring Sea Arbitration Aivard of August 15, 1893.

Windsor, April 30, 1894.

At the Court at Windsor, the 30th day of April, 1894.

Present: The Queen's Most Excellent Majesty.

Lord President. Lord Chamberlain.

Lord Steward. Sir Charles Russell.

Earl of Chesterfield. Sir Frank Lascelles.

Whereas by ''The Behring Sea Award Act, 1894," it is

enacted that Her Majesty the Queen in Council may make


orders for carrying into effect the provisions of the Behring

Sea Arbitration Award set out in the first schedule to that

act, and therein referred to as the scheduled provisions

:

And whereas by the said act, it is also enacted that an

order in council made under that act may provide that such

officers of the United States of America as are specified in

the order may, in respect of offences under that act, exercise

the like powers under that act as may be exercised by a com-

missioned officer of Her Majesty in relation to a British

ship, and the equipment and certificate thereof, or such of

those powers as appear to Her Majesty in council to be ex-

ercisable under the laws of the United States of America

against ships of the United States, and that such British

officers as are specified in the order may exercise the powers

conferred by that act, with any necessary modifications

specified in the order, in relation to a ship of the United

States of America and the equipment and certificate

thereof

;

And whereas the powers which article 1 of this order con-

fers upon the officers of the United States therein specified

are powers which, in respect of offences under the said act,

may be exercised by a commissioned officer of Her Majesty

in relation to a British ship and the equipment and certifi-

cate thereof, and appear to Her Majesty in council to be

exercisable under the law of the United States against ships

of the United States

:

Now, therefore, Her Majesty, in virtue of the powers

vested in her by the said recited act, and of all other powers

enabling her in that behalf, is hereby pleased, by and with

the advice of Her Privy Council, to order, and it is hereby

ordered, as follows:

1. The commanding officer of any vessel belonging to the

naval or revenue service of the United States of America,

and appointed for the time being by the President of the

United States for the purpose of carrying into effect the

powers conferred by this article, the name of which vessel

66 The Pavourite.

shall have beeu eommimieated by the President of the

United States to Her Majesty as being a vessel so appointed

as aforesaid, may, if duly commissioned and instructed by

the President in that behalf, seize and detain any British

vessel which has become liable to be forfeited to Her

Majesty under the provisions of the recited act, and may

bring her for adjudication before any such British court of

admiralty as is referred to in section 103 of "The Merchant

Shipping Act, 1854" (which section is set out in the second

schedule to the recited act), or may deliver her to any such

British officer as is mentioned in the said section for the

purpose of being dealt with pursuant to the recited act.

2. The commanding officer of any vessel belonging to the

naval or revenue service of Her Majesty, and appointed for

the time being by Her Majesty for the purpose of carrying

into effect the powers conferred by this article, the name of

which vessel shall have been communicated by Her Majesty

to the President of the United States as being a vessel so

appointed as aforesaid, may, if duly commissioned and in-

structed by Her Majesty, in that behalf, exercise the powers

conferred by the recited act in relation to a ship of the

United States : Provided, that such officer, after seizing and

detaining a ship of the United States in exercise of the said

powers, shall take her for adjudication before a court of the

United States having jurisdiction to adjudicate in the mat-

ter, or deliver her to any naval or revenue officer or other

authorities of the United States.

3. Until arrangements for giving further effect to articles

4 and 7 of the said scheduled ]n-ovisions shall have been

made between Her Majesty and the Government of the

United States, the following ])rovisions should have effect:

{a) A Secretary of State, or any person duly authorized

by him for tlic ])urpose, may grant a special licence in such

form and manner as he may think fit to any British sailing

vessel aiithoi'izing such vessel for the ])resent year to fish

for fur seals during the period of time in the manner and iu


the waters in which fur-seal fishing is allowed by the recited

act, and until the delivery of such special licence any British

sailing vessel which before the date of this order has left

port and is or is intended to be employed in the said fishing

shall be deemed to have been duly authorized and duly pro-

vided with a special licence within the meaning of the said

article 4 ; and all persons on board any such vessel, which is

or is deemed to have been provided with a special licence,

shall be deemed to have been duly authorized to engage in

fur-seal fishing within the meaning of the said article 7.

(b) A Secretary of State may, by notice published in the

London Gazette, prescribe the flag to be used by such British

vessels as are, or shall be, authorized to fish for fur seals

under the provisions of this order, and may cause one such

flag to be delivered to each authorized vessel which has left

j)ort before receiving a special licence ; and every vessel

which before leaving port has received a special licence, and

every authorized vessel to which such flag shall have been

delivered, shall carry such flag during the period of time

and in the waters in which fur-seal fishing is allowed by the

recited act, and shall hoist it at such times and in such man-

ner as may be prescribed by such notice.

(c) A Secretary of State may give such further provis-

ional directions as he may deem necessary for the due ob-

servance of the provisions of the recited act and this order,

and any such directions, on being published in such manner

as he may direct, shall be observed as if they were contained

in this order.

4. This order may be cited as ''The Behring Sea AwardOrder in Council, 1894."

And the Right Honourable the Earl of Kimberley, K. G.,

the ^fost TTonourable the Marquis of Ei]ion, K. G., two of

Tier Majesty's Principal Secretaries of State, and the Lords

Commissioners of the Admiralty are to give the necessary

directions herein as to them may respectively appertain.

C. L. Peel.

68 The Favourite.

EXHIBIT 12.

The Secretary of State to the British Ambassador.

Department of State,

Washington, April 18, 1894.

The Secretary of State presents his compliments to his

excellency the British ambassador, and has the honor to

hand him herewith a list of the vessels which are to com-

pose the United States naval force in Bering Sea during the

coming season, which has been sent him by the Secretary

of the Navy in compliance with the request made him by

Sir Julian Pauncefote!

[Enclosure.']

U. S. S. Mohican, U. S. S. Concord, U. S. S. Yorktoivn,

U. S. S. Bennington, U. S. S. Ranger, U. S. S. Alert, U. S. S.

Adams, U. S. S. Petrel, U. S. S. Albatross, revenue cutter

Bear, revenue cutter Rush, revenue cutter Corwin.

EXHIBIT 13.

Original Draft of Instructions to the Commanding Officer

of the U. S. Naval Forces in Behring Sea.

Navy Department,


Sir:

1. Plaving been detailed to command a force of naval ves-

sels and revenue cutters to carry out the provisions of an

act of Congress api)roved April 6, 1894, ''to give effect to

the award rendered by the Tribunal of Arbitration at Paris,

under the treaty between the United States and Great


Britain, concluded at Washington, February twenty-ninth,

eighteen hundred and ninety-two, for the purpose of submit-

ting to arbitration certain questions concerning the preser-

vation of fur seals," and of the President's proclamation of

the same, dated Washington, D. C, April 9, 189-t, you will

order the vessels under your command to warn all Ameri-

can and British vessels they may meet outside of the waters

prohibited by this act not to enter these waters for the pur-

pose of sealing during the periods of time in which fur-seal

fishing is so prohibited, and you will deliver to the com-

manding officer of each vessel so warned a copy of the Presi-

dent's proclamation, of the British act, and of these in-

structions,

2. An entry, showing the notice of warning, shall be madeupon the register of all vessels of the United States and

Great Britain that have been warned.

3. In accordance with the provisions of the above-men-

tioned act, as. appears by reference to section 1 thereof, fur-

seal fishing is forbidden to the persons mentioned therein,

and to all subjects of Great Britain, to persons owing the

duty of obedience to the laws or the treaties of Great

Britain, and to all persons belonging to or on board of a

vessel of Great Britain, at any time or in any manner what-

ever, outside of territorial waters, in the waters surround-

ing the Pribilof Islands within a zone of 60 geographical

miles thereof (60 to a degree of latitude) around said

islands, inclusive of the territorial waters.

You will observe that the act of Congress extends the zone

referred to in this paragraph 60 (geographical) miles

around said islands, exclusive of the territorial waters, but

you are hereby instructed to treat the limit as extending

only 60 (geographical) miles around said islands, inclusive

of the territorial waters. The word exclusive was inad-

vertently inserted in the act of Congress instead of the wordinclusive, which appears in the award, and which it is the

purpose of the act to enforce.

70 The Faronritc.

4. During the season extending from May 1 to July 31,

both inelnsive in each year, fur-seal fishing is forl)idden to

all persons mentioned in the first section of the act, and to

all subjects of Great Britain, to })ersons owing the duty of

obedience to the laws or tlic treaties of Great Britain, and

to all persons belonging to or on ))oard of a vessel of Great

Britain, not only in the zone mentioned in the third para-

graph of these instructions, but in that part of the Pacific

Ocean, including Bering Sea, which is situated to the north

of the thirty-fifth degree of North latitude and to the east of

the one hundred and eightieth degree of longitude from

Greenwich, till it strikes the water boundary between the

United States and Russia. This boundary line passes

through a point in Bering's Straits on the parallel of 65°

30', north latitude, at its intersection ])y the meridian whicli

passes midway between the islands of Krusenstern, or Inga-

look, and the island of Ratmanoff, or Noonarbook, and pro-

ceeds due north, without limitation, into the same frozen

ocean. The same western limit, beginning at the same ini-

tial point, proceeds thence in a course nearly southwest

through Bering's straits and Bering Sea, so as to ])ass mid-

way between the northwest point of the Island of St. Law-

rence and the southeast point of Cape Choukotski, to the

meridian of one hundred and seventy-two west longitude;

thence, from the intersection of that meridian, in a south-

westerly direction uiilil it strikes the one hundred and

eightieth degree of longitude from Greenwich.

5. Tbe regulations respecting the "special license" for

sailing vessels, and the "distinguishing flag" to be worn by

the same during the open season, mentioned in sections 3

and 7 of the act, are hei'eafter to l)e jirescribed and promul-

gated by tlic Governments of tlic United States and Great

Britain.

6. Any vessel or person described in the first section of

this act, or any subject of Great Britain, oi' person owing

obedience to the laws or the treaties of Great Britain, or


any person belonging to or on board of any vessel of Great

Britain, unauthorized by this act, found to be or to have

been employed in sealing during the period of time and in

the waters therein prohibited, whether with or without

warning, and any of such vessels or persons found therein,

whether warned or not, having on board or in their posses-

sion apparatus or implements suitable for taking seal, or

seal skins, or bodies of seals, you will order seized.

7. The commanding officer making the seizure will,

at the time thereof, draw up a declaration in writ-

ing stating the condition of the seized vessel, the date

and place of seizure, giving latitude and longitude

and circumstances showing guilt. The seized vessel

will be brought or sent, as soon as practicable, with all

persons on board thereof, in charge of a sufficient force

to insure delivery, together with witnesses and proofs, and

the declaration of the officer making the seizure, if Ameri-

can, to the most convenient port of Alaska, California, Ore-

gon, or Washington, and there delivered to the officers of the

United States court having jurisdiction to try the offense

and impose penalties for the same; and, if British, to Una-

laska, and there delivered to the senior British naval officer

present, or to the most convenient port in British Columbia,

and delivered to the proper authorities of Great Britain, or

delivered to the commanding officer of any British vessel

charged with the execution of the award herein referred to.

8. A signed and certified list of the papers of the seized

vessel will be delivered to the master thereof, and a dupli-

cate copy will be transmitted with the declaration.

9. Copies of the act of the British Parliament are here-

with inclosed.

Very respectfully,

H. A. Herbert,

Secretary of the Navy.

Commander Charles E. Clark, U. S. N.,

Commanding IT. S. Naval Force in Bering Sea,

U. S. S. Mohican, Port Townsend, Washington.

( 2̂ The Favourite.

EXHIBIT 14.

The British Ambassador to the Secretary of State.

Washington, April 30, :1894.

Sir:

In accordance with the arrangement made when I had the

honor of an interview with you and the Secretary of the

Navy at the State Department, Mr. Herbert was good

enongli to send me on the 19th instant the draft of the in-

structions which it was proposed to issue to the officer com-

manding the United States naval force in Bering Sea for

his guidance in carrying out the provisions of the act of

Congress passed to give effect to the award of the Bering

Sea Tribunal of Arbitration.

On the following day I transmitted the draft instructions

to my Government for tlieir observations, and I am now in

receipt of a telegram from Her Majesty's principal secre-

tary of state for foreign affairs, in which I am directed to

draw your attention to paragraph 6 of the draft instruc-

tions, so far as it relates to British vessels. That para-

graph requires modification in order to bring it, as regards

the powers to be exercised by United States cruisers over

British vessels, within the limits prescribed by the British

Order in Council conferring such powers.

The Earl of Kimberley desires me to state to you that the

order in council which is about to be issued to empowerUnited States cruisers to seize British vessels will only au-

thorize them to make seizures of vessels contravening the

provisions of the British act of Parliament, or, in other

words, the provisions of the award.

There is no clause in the British act corresponding with

section 10 of the United States act of Congress. Ignited

States ci'iiiscrs cannot therefore seize British vessels

merely for having on board, while within the area of the


award and during the close season, implements suitable for

taking seal. The mode in which such vessels should be

dealt with is indicated in the instructions issued on that

point to the British naval officers, and of which I have the

honor to inclose a copy, and Lord Kimberley suggests that

the instructions to the United States cruisers should coin-

cide with the British instructions so far as regards the

seizure of British vessels. The Secretary of the Navy was

good enough to furnish me, in addition to the draft of the

proposed instructions to the United States cruisers, with a

map intended to accompany them and purporting to show

the delimitation of the waters embraced in the award. As

regards this map Uord Kimberley points out that the red

line drawn thereon is not quite correct. It makes the

meridian 180 strike the Russian water boundary north of

the sixtieth degree of latitude, instead of reaching it south

of that degree, as it should do according to the award.

I have the honor, etc.,

Julian Pauncefote.

{Enclosure.)

Instructions to British cruisers as to seizure.

If a vessel which appears to be a sealing vessel is found

in any waters in which, at the time, hunting is prohibited,

you will ascertain whether she is there for the purpose of

hunting, or whether she has hunted, or whether she wascarried there by stress of weather, or by mistake, during

fog, or is there in the ordinary course of navigation on her

passage to any place.

If you are satisfied that the vessel has hunted contrary

to the act, you will seize her and order her to proceed to the

British port hereinafter mentioned ; but if you are of opin-

ion that no offense has been conmiitted you should warn her

and keep her, as far as you think necessary and as is prac-

ticable, under supervision.

74 The F<i roil rife.

Whether this vessel has been engaged in hunting yon

mnst judge from the presence of sealskins or bodies of seals

on board and other cirenmstances and indications. If the

vessel is found outside the specified limits and it is evident

that she has been hunting within those limits, and that tlms

an offense has been committed, you will seize her and send

her to ])Oi't.

A vessel, though herself not within the prohibited limits,

may violate the act by her boats hunting within such limits.

EXHIBIT 17).



Washington, May .v, Lsm.Excellency :

I have the honor to acknowledge the receipt of your note

of yesterday's date, in which, referring to the steps taken

to warn sealing vessels in Bering Sea, you ask whether the

naval officers of the United States would be instructed to

give to British scalers they may speak copies of the Bering

Sea award act and of an explanatory map thereto annexed,

of which you offer to furnish copies for that purpose.

By the second paragraph of the amended instructions

issued by the Secretary of the Navy to the conmianding offi-

cers of the United States fleet in Bering Sea, under date of

4th instant, in place of the previous instructions of Ai)ril

18, the British act is among the papers to be delivered to

the masters of sealing vessels so warned.

It will give me much pleasure to receive and connnunicate

to the Secretary of the Navy for appropriate distribution

the copies of the British act and the annexed nui)) which you

offer to supply.

I inclose foi- your infoi'inntion copies of the above-men-

tioned n;i\;il ins! nid ions and of llic regulations governing

vessels em))loyefl in fur-seal fishing.

' ' W. Q. Gresham.

Appendix to the Answer. '7B

(Enclosure.)

Instructions to the Commanding Officer of the U. S. Naval

Forces in Bering Sea.

Navy Department,

Washington, May 4, 1894.

Sir:

Congress having passed acts which were approved April

6, 1894, and April 24, 1894, and the Government of the

United States having made arrangements with Great

Britain to give effect to the award rendered by the Tribunal

of Arbitration at Paris, under the treaty between the United

States and Great Britain, concluded at Washington, Feb-

ruary 29, 1892, for the purpose of submitting to arbitration

certain questions concerning the preservation of fur seals,

you are detailed to command a force of naval and revenue

vessels to carry out the provisions of the award, of the acts

of Congress, and of the President's proclamation dated

Washington, D. C, April 9, 1894.

You will order the vessels under your command to warn

all American and British vessels they may meet not to en-

gage in fur-seal fishing within the area of the award, during

the periods of time in which fur-seal fishing is forbidden,

and to deliver to the master of each of such vessels a copy

of the President's proclamation, of the act of Congress, ap-

proved April 24, 1894, of the President's regulations gov-

erning vessels employed in fur-seal fishing, of the British

act, and of these instructions.

AMienever a vessel may be warned, the commander of the

cruiser, or the customs officer, as the case may be, shall,

after making an examination of the vessel, leave with the

master of said vessel a certificate showing the date and

place of examination, the number of seal skins, and the num-ber of bodies of seals then on board, and shall preserve a

duplicate of said certificate. And no officer, subsequently

76 The Favourite.

boarding such vessel, sliall seize the same, unless he shall

be satisfied, as herein provided, that it has conmiitted a vio-

lation of law by killing I'nr seal within the area of the award

subseqnent to the oOtli day of April, 1894.

Fur-seal fishing is forbidden to all persons mentioned in

section 1 of said act of Congress, to all subjects of Great

Britain, to persons owing the duty of obedience to the laws

or the treaties of (ireat Britain, and to all persons belong-

ing to or on l)oard of a vessel of Great Britain, at any time,

or in any manner whatever, outside of territorial waters, in

the waters surrounding the Pribilof Islands within a zone

of 60 geographical miles thereof (60 to a degree of latitude)

around said islands, inclusive of the territorial waters.

Fur-seal fishing is forbidden during the season extending

from May 1, to July 31, both inclusive, in each year, to all

persons mentioned in the first section of said act of Con-

gress, and to all subjects of Great Britain, to persons owing

the duty of obedience to the laws or the treaties of Great

Britain, and to all persons belonging to or on board of a

vessel of Great Britain, not only in the zonu mentioned in

the fourth paragraph of these instructions, but in that part

of the Pacific Ocean, including Bering Sea, which is situated

to the north of the thirty-fifth degree of north latitude and

to the east of the one hundred and eightieth degree of longi-

tude from Greenwich, till it strikes the water boundary be-

tween the United States and Russia. This boundary line

passes through a point in Bering Straits on the parallel of

65° 30' north latitude, at its intersection by the meridian

which passes midway between the islands of Krusenstern

or Tgnalook, and the island of Ratmanoff or Noonarbook,

and proceeds due north, without limitation, into the same

frozen ocean. The same western limit, beginning at the

same initial point, proceeds thence in a course nearly south-

west, through Bering Straits and Bering Sea, so as to pass

midway between- the northwest point of the island of St.

Lawrence and the southeast point of Cape Choukotski to the

Appendix to the Answef. 77

meridian of one hundred and seventy-two west longitude;

thence, from the intersection of that meridian, in a south-

westerly direction, until it strikes the one hundred and

eightieth degree of longitude from Greenwich.

Any vessel or person described in the first section of said

act of Congress, or any vessel or subject of Great Britain,

or person owing obedience to the laws or the treaties of

Great Britain, or any person belonging to or on board of

any vessel of Great Britain, unauthorized by this act found

to be or to have been engaged in fur-seal fishing within the

area of the award, during the periods of time in which fur-

seal fishing is forbidden, you will order seized.

If a vessel which appears to be a sealing vessel is found

within the area of the award, during the periods of time in

which fur-seal fishing is forbidden, you will ascertain

whether she is there for the purpose of fur-seal fishing,

whether she has been engaged in fur-seal fishing, whether

she was carried there by stress of weather, by a mistake

during foggy or thick weather, or is there in the ordinary

course of navigation, making the best of her way to any

place. You must judge whether such vessel has been en-

gaged in fur-seal fishing from the presence of seal skins or

bodies of seals on board, and from other circumstances and

indications. If such vessel is found outside of the area of

the award, and it is evident that she has been engaged in

fur-seal fishing within said area, and has thus connnitted an

offense, you will order her seized. A vessel may violate the

law by her boats fur-seal fishing within said area, while the

vessel, herself, is outside of said area.

The conunanding officer making the seizure will, at the

time thereof, draw up a declaration in writing, stating the

condition of the seized vessel, the date and place of seizure,

giving latitude and longitude and circumstances showingguilt. The seized vessel will be brought or sent, as soon as

])racticabl(', with all persons on board thereof, in charge of

a sufficient force to insure delivery, together with witnesses

9S The Favourite.

and proofs, and the declaration of the officer making the

seizure, if American, to the most convenient port of Alaska,

California, Oregon, or AVashington, and there delivered to

the officers of the United States court having jurisdiction

to try the otfense and impose penalties for the same; and if

British, to Unalaska, and there delivered to the senior

British naval officer present, oi- carried to the most con-

venient port in British Columbia, and delivered to the

proper authorities of Great Britain, or delivered to the com-

manding officer of any British vessel charged with the exe-

cution of the award herein referred to.

A signed and certified list of the papers of the seized ves-

sel will be delivered to the master thereof, and a duplicate

copy will be transmitted with the declaration.

You will arrange with the commanders of the British ves-

sels engaged in carrying out the provisions of the award

for the mutual delivery of vessels of the one country seized

by officers of the other.

These instructions will remain in force only during the

present season.

Very respectfully,

H. A. Herbert,

Secretary of the Navy.

Commander Charles E. Ci.AKK, U. S. N.,

Commanding U. S. Naval Force in Bering Sea,

U. S. S. Mohican, Port Townsend, Wash.

EXHIBIT IG.



Sir:

III accoi'daiu'e wilh the agi'eciiicnt arrived at during the

recent negotiations in iclation to the means of giving effect

for the present year to the fishery regulations prescribed


by the award of the Bering Sea Tribunal of Arbitration, I

have the honor to inclose for your approval a memorandumrecording the arrangements concluded on that subject and

accepted by both Governments, and I shall feel obliged if

you will be good enough to inform me whether the memo-

randum meets with your approval.

I have, etc.

Julian Pauncefote.

(Enclosure.)

Memorandum of the arrangements agreed upon between

the Governments of Great Britain and the United States

for giving effect during the year 1894 to the fur-seed

fishery regulations prescribed by the atvard of the Bering

Sea Tribuncd of Arbitration.

Licenses.

The special license to be issued to sealing vessels under

article 4 of the regulations of the award shall declare that

the licensee has given satisfactory evidence of the fitness

of the hunters to be employed by him, as required by

article 7.

It shall be issued subject to the observance of the said

regulations and to the penalties imposed by law for the vio-

lation thereof.

It shall be in such form as each Government shall deter-

mine for itself.

Distinctive Flag.

Every sealing vessel provided with a special license shall

show, under her national colors, a flag, not loss than 4 feet

square, composed of two equal pieces, yellow and black,

joined from the right-hand ui)i)er corner of the fly to the

left-hand lower corner of the luff, the part above and to the

left to be black and the part to the right and below to be

yellow.

80 The Favourite.

Regulations Respecting Sealing Vessels Lawfully Navi-

gating THE Maritime Aeea of the Award during the

Close Season.

1. No sealing vessel shall be seized or detained by reason

of the absence of a license or of a distinctive flag, or merely

on account of seals, seal skins, or fishery implements being

found on board; but, unless there be evidence of unlawful

sealing, the commander of the cruiser visiting such vessel

shall deliver to the master a certificate of the number of

seals and seal skins found on board on tluit date (keeping a

copy of such certificate) and allow the vessel to proceed on

her way.

2. Any sealing vessel lawfully traversing, or intending to

traverse, the said waters during the close season, for the

purpose of returning to her home port, or of proceeding to

any other port, or to or from the sealing grounds, or for

any other legitimate purpose, may, on the application of the

master, have her fishery implements sealed up and an entry

thereof made on her clearing and log book, and such sealing

up and entry shall be a protection to the vessel against in-

terference by any cruiser in the said waters during the close

season so long as the seals so affixed shall remain unbroken,

unless there shall be evidence of seal hunting notwithstand-

ing.

3. The sealing up of fishery implements and the entry

thereof may be effected by any naval officer or customs offi-

cer, or (in Japan) by any consul of the nation to which the

vessel belongs. It may also be effected at sea, as regards

United States vessels, by the commander of a British

cruiser, and, as regards British vessels, by the commander

of a United States cruiser.


EXHIBIT 17.




Excellency :

In reply to your excellency's note of the 10th instant in-

closing a memorandum of certain arrangements agreed

upon between our respective Governments for giving effect

during the year 1891 to the fur-seal fishery regulations pre-

scribed by the award of the Bering Sea Tribunal of Arbi-

tration, I have the honor to state that I approve of the mem-orandum as containing a correct record of the arrangements

agreed upon.

I have the honor to be, etc.,

W. Q. Gresham.

EXHIBIT 18.

The Secretary of State to Lord Gough.

DepartmeInt of State,

Washington, June 14, 1895.My Lord :

I have the honor to apprise you of the receipt of a letter

of the 11th instant from the Secretary of the Treasury, re-

porting, in view of a communication of the 11th ultimo fromCaptain Hunger, of the U. S. revenue cutter Cor win, the

seizure of the British .s(\aling schooner Shelby on May 11

last.

The declaration of seizure prepared by Captain Mungerand delivered to the commanding officer of H. M. S. Pheas-ant states that the vessel was seized for disregarding the

proclamation of the President of the United States and the

82 The Favourite.

act of Congress of April 6, 1894. From an examination of

the report of Cajitain Muuger, it would appear that the seiz-

ure was made on the ground that there was cause to believe

that said vessel had killed fur seals within the award area

during the closed season, the reason for such belief being

found in the possession by the vessel of seal skins, imple-

ments, and outfits, together with salt, shotguns, and ammu-

nition.

On receipt of said report Captain Hooper, commanding

officer of the patrolling fleet, was reminded that the act of

Congress of April 6, 1894, was applicable only to American

vessels. He was also directed if, on investigation, he found

that said vessel was seized on the charge of illegal killing

during the closed season, to instruct Captain Munger to

deliver to the commanding officer of H. M, S. Pheasant an

amended declaration of seizure, assigning as the cause the

violation of the second article of the regulations of the Paris

award, as set forth in the schedules annexed to the British

act of Parliament known as the Bering Sea award act of

1894.

In this connection the receipt signed by the commander of

H. M. S. Pheasant is called to your attention

:

''Sitka, May 13, 1895.

In accordance with the provisions of section 12,

article 9, of the Bering Sea fisheries^ award, I have

this day received from C. L. Hooper, captain. United

States Revenue Cutter Service, commanding Bering

Sea fleet, the British schooner Shelhjj, of Victoria,

British Columbia, C, Classen, master, with her tackle,

furniture, cargo, and documents, seized by the United

States revenue steamer Corivin, Capt. P. M. INTunger,

commanding, for violation of the acts of Congress

and of the British Parliament regulating the fur-seal

fisheries.

Prank A. Garforth,

Lieutenant, R. N., Commanding

H. B. M. Pheasant.''


Under these circumstances, I request that the consent of

Her Majesty's Government be given for the appointment

of counsel to represent the Government of the United States

in condemnation proceedings against the Shelby and such

other British vessels as may be seized this season by officers

of the United States for violation of the regulations of the

Paris award. It is confidently believed that such action will

greatly assist in the proper enforcement of the award pro-

visions.

In this connection, I observe that the declaration of seiz-

ure will be amended to the end that the libel in admiraltv

may set forth the breach of the British act of Parliament

known as the Bering Sea award act of 1894.

Asking that you will have the kindness to promptly com-

municate to Her Majesty's Government the purport of this

note and to apprise me, at your early convenience, of HerMajesty's decision upon the subject, I have, etc.,

Richard Olney.

EXHIBIT 19.

The Secretary of State to Mr. Roosevelt.


Washington, Jime 18, 1895.

Sir:

Among the correspondence transmitted with the Depart-

ment's instruction No. 713 of :\ray 23, and 740 of the 12th

instant, you will find mention of the cases of the British

sealing schooners Wanderer and Favourite^ the seizure of

which, according to Sir Julian's note of May 11, affords

grounds for Her Majesty's Government to reject for the

current year the provision of last year's regulations con-

cerning the sealing up of arms on board of vessels travers-

ing the award area during the closed season.

84 The Fn roil rife.

I am informed by the United States consul at Victoria,

B. C, that the Wanderer having been seized June 9, 1894,

in the North Pacific Ocean by the commander of the U. S.

cruiser Concord and formally delivered to the commander

of H. M. S. Pheasant, was subsequently taken to Victoria

and released b}^ Admiral Stephenson of H. M. S. Royal

Arthur.

The consul states that upon investigation it was found

that all the guns of the Wanderer, except one, were secured

under seal ; that her master had no knowledge that there

was a gun on board unsealed in violation of last year's

regulations; and further, that Admiral Ste])henson "after

careful investigation, and acting under k^gal advice, ordered

the release of the schooner, the conclusion having been

reached that no case could be made out against her."

I am also advised by the Secretary of the Treasury that

his department understands that the British sealing

schooner Favourite, seized in Bering Sea, August 24, 1894,

by the commanding officer of the U. S. S. Mohican, was

similarly released upon ])eing turned over to the British

naval authorities.

I have to instruct you to i'ei)reseiit to Her Majesty's Gov-

ernment that this action of the British naval authorities is

not in accord with the evident intent and spirit of the legis-

lation enacted by the respective Governments for carrying

out the provisions of the Paris award.

These vessels were seized under authority of the order in

council of Tier Majesty's Government, dated April 30, 1894,

whereby United States officers, duly connnissioned and in-

structed by the President, were authorized to seize any

British vessel which had violated the Paris award regula-

tions as contained in llie act of Parliament, known as "the

Bering Sea award act, 1894," and bring lici- I'oi- adjudica-

tion before anv British court of ndiniraltv, oi- in lieu

thereof to deliver her to any British officer for adjudication

before said court.


The plain purpose of the law necessarily required judicial

proceedings for the condemnation and forfeiture of every,

vessel seized for violation of the award provisions, espe-

cially those seized by United States officers and delivered to

the British authorities as aforesaid, or conversely. In the

case in question, however, it would appear that Admiral

Stephenson, in discharging said vessel, took upon himself

to decide a question which undoubtedly could properly be

decided only by the competent British court of admiralty.

By no process of reasoning can it be inferred from the terms

of the Paris award or of the concurrent legislation of the

two countries thereunder, that conviction or acquittal of

any offense thereby contemplated could be reached by other

than due process of law. No concurrent authority of the

naval commanders to decide the question of guilt or inno-

cence appears, and certainly it was never contemplated that

the naval commander of the vessel's nationality should

alone and on his own account revise and overrule the action

of the seizing commander.

The evidence in the case of the Wanderer seems clearly

to justify the suspicion and belief that some, at least, of the

four hundred seal skins found on board had been taken dur-

ing the prohibited season by means of shotguns, in violation

of the award regulations and of the British and American

laws. The master gave his arms and ammunition to the

commander of the IT. S. cruiser Yorktowu to be secured

under seal. I.ateV in the same day he was boarded by the

commander of the cruiser Concord and stated that the arms

and ammunition sealed up by the Yorktoivn were all he had

on board. Upon search, however, a breech-loading shotgun

and a bag of loaded shells were found concealed in the ex-

treme forward ])art of the vessel under a pile of iron cans,

between decks. While the officer was making an entrv in

the log book as to this weapon, the master of the vessel washeard to say to the mate, "God damn it, I told you you

ought to have had that put in with the others," or words to

that effect.

86 The Friroyinfc.

This deception of the master, together with the conceal-

ment of the weapon and tlie presence on hoard of seal skins

and other suspicions evidence revealed on search, clearly

should have been submitted to a court of admiralty as evi-

dence in condemnation proceedings,

Tn the case of the Fa run rite, 1,230 seal skins were found

on board, together with a shotgun whose barrels were cut

ofif to 12 inches. It was foimd that it would shoot accu-

rately for the distance of 50 yards ; its use was prohibited

by the award regulations.

The cause particularly assigned for these seizures,

namely, the carrying of firearms unsealed, taken in con-

nection with the fact that such weapons were forbidden then

and there to be used, and that there were also found seal

skins on board, would plainly justify the belief that said

firearms had been used in violation of article 6 of the award

as contained in the British Bering Sea award act of 1894,

and the American act of Congress of April 6, 1894.

That the notices of seizure, as prepared by the United

States seizing officers, do not with particularity specify the

illegal use of these weapons, but rely chiefly upon their

presence on board unsealed, clearly would not prevent such

use being proved in subsequent proceedings in court for

condemnation and forfeiture, the effect of said notices being

merely to acquaint the authorities to whom the ships are

turned over of the fact of the seizure, and of the particular

offenses relied upon for ninintnining n libel in condemna-

tion proceedings. It would seem perfectly clear that addi-

tional breaches of the law could be assigned and made the

subject of condemnation ]n'Oceedings at any time before the

trial.

The instructions issued by the British Government to the

comni.'indcis of ifs cinisiug vessels foi- the season of 1894,

would, it is submifted, have iiiii)()S('(I upoji such officers

under similar circumstances the duty of seizing these ves-

sels. Said instructions, in part, were as follows:


"If you are satisfied that a vessel has hunted con-

trary to the act, you will seize her. * * * A^^lether

the vessel has been engaged in hunting, you must

judge from the presence of seal skins or bodies of

seals on board, and other circumstances and indica-

tions."

The preceding facts and considerations justify the formal

protest of this Government against the aforesaid action of

the British naval authorities, as reported, in releasing the

seized vessels, without due judicial process, and constrain it

to request that in future every vessel seized by United

States officers under the provisions of the award and the

concurrent legislation and regulations in regard thereto

shall be proceeded against for condemnation in the admi-

ralty court having jurisdiction in the premises.

You will communicate the foregoing to the Earl of Kini-

berley by reading this instruction and, should he so desire,

furnishing him with a copy.

I am, &c., &c, KiCHARD Olney.

EXHIBIT 20.

The Acting Sccretarij of State to Lord Gough.


Washington, July 1, 1895.

My Lord:

Your note of May 27 last, informing me that HerMajesty's Government had designated the naval vessels

Nymph and Pheasant to ]iatrol that part of the North Pa-

cific Ocean and Bering Sea embraced within the terms of

the award of the Tribunal of Arblti-ation during the season

of 189.") was duly received and communicated to the Secre-

tary of the Treasury, to whose Department the supervision

of the corresponding control of those waters under the

88 The fdvnjirife.

award and regulations of the Paris tribunal duly pertains.

It is proper, however, in the interest of the efficient fulfill-

ment of the obligations of the respective Governments under

the award and findings of the Paris tribunal, that the atten-

tion of Her Majesty's Government should be drawn to the

obvious inequality and inadequacy of the measures adopted

by Her Majesty's Government to that end, both with regard

to the work necessarily to be accomplished and as compared

with the steps taken by the United States Government to the

same end.

This discrepancy was especially marked during the season

of 1894, when Her Majesty's Government designated only

one patrolling vessel, the Pheasant, although a majority of

the schooners engaged in fur-seal fishing within the award

area were under the British flag; while of those which en-

tered Bering Sea less than one-half were United States ves-

sels. In that year twelve United States vessels were desig-

nated by the President to patrol the award area, viz : Mohi-

can, Bennington, Alert, Ranger, YorJdorvn, Adams, Con-

cord, and Petrel; the revenue cutters Corivin, Rush, and

Bear, and the Fish Commission steamer Albatross. The

expense attending the presence of these vessels in the North

Pacific Ocean and Bering Sea for the season of 1894, exclu-

sive of the pay of officers and men and also excluding ra-

tions, was $198,304.49.

For the present season of 1895 the discrepancy, although

less marked, is still noteworthy; the conditions under which

the patrol of those sealing waters is conducted impose in

some respects more onerous duties upon the contracting

parties in the protection of seal herds from illicit destruc-

tion.

There is grave reason to suspect that during the ap-

proaching season in Bering Sea, which opens on the 1st of

August, sealing vessels will take advantage of the refusal

of the Britisli Government to continue the agreement of

1894, which provided for the sealing up of the arms of such


vessels while in Bering Sea, thereby increasing the demands

upon the vigilance of the patrolling fleet to detect evasions

and infractions of the provisions of the Paris award. In a

report from the United States Fish Commission recently

transmitted to the Treasury Department it is stated

:

"We may reasonably exi)ect a fleet of 56 vessels in

those waters (Bering Sea). * * * Regarding

Bering Sea, the sealers appear gratified over the fact

that their firearms cannot be sealed up. They con-

sidered the sealing of arms a great hardship, and

their satisfaction over carrying them unsealed must

mean a determination to use them whenever they

think it safe to do so. Some of them say that when

the Japan fleet hear of this they will send more ves-

sels to the sea. There is little doubt but that fire-

arms carried into the sea will be used."

While the sealing fleet in the award area is about the

same in numbers as in 1894, the British vessels alreadv

cleared for the fur-seal fisheries outnumber the American

so cleared in about the proportion of 2 to 1. The United

States patrolling fleet for this season consists of seven ves-

sels, viz: The revenue cutters Rush, Bear, Conv'm, Wolcott,

Grant, and Perry, and the Fish Commission steamer Alba-

tross.

In view of the vast area to be patrolled, this Oovernment

is constrained to suggest that the detail of two naval vessels

only on the ]>art of Her îajesty's Government is totally

inadequate to the i)erfornuince of the ]n-oper share of the

work and responsibility of patrol which necessarily falls to

that Government.

I am therefore moved to invite, through you, the earnest

attention of Her Majesty's Government to this matter, and

to ask for the more active and efficient cooperation in en-

forcing the legislation concurrently enacted for carryin

out the provisions of the Paris award, which this Govern-g

f

90 The Favourite.

ment believes it has a right to expect from lier Alajesty's

Government in view of the joint obligations which rest upon

tliem in this regard.

Wliile treating of this subject I beg to advert to the im-

portance of obtaining from Her Majesty's Government a

speedy answer touching the changes proposed in the scoi)e

of the Paris award, and the practicable suggestions and re-

quests contained in my note to Sir Julian Pauncefote of

Mav 10 last, and in the note of Secretary Olnev to vou of

the 14th ultimo. I refer particularly to the proposition in

my note of May 10, that the carrying of firearms in Bering

Sea be prohibited, or that illegal use shall be presumed from

the possession of weapons the use of which is ]irohibited,

as now provided for in section 10 of the act of Congress of

April 6, 1894, and as was formerly provided for in the

British Bering Sea act of 1891 and the seal fishery (North

n Pacific) act of 1893. The note of May 10 further requested

permission to appoint experts on behalf of the Government

of the United States to examine all seal skins landed at

British Columbia ports with regard to sex, mode of slaugh-

ter, etc., the results found being compared with the log-

book entries. In the note of June 14 a request was made

that counsel in representation of the Government of the

United States be admitted in {'oiidciimation ]^roceedings of

vessels seized by United States or British officers. The

foregoing suggestions being particularly applicable to Ber-

ing Sea, where the season opens on the 1st of August next,

it will be highly desirable to have a distinct understanding

upon the subject reached before that time, and I therefore

renew the ])revious request for an early answer.

I have, etc.,

Edwin F. Uhl,

Acting Secretary.

Appendix to the Answef. 91

EXHIBIT 21.

The Marquis of Salisbury to Lord Gougli.

(Handed by Lord Gough to the Secretary, September 6, 1895.)

FoKEiGN Office, August 16, 1895.

My Lord :

The Earl of Kimberley, iu his telegram, No. 23, of the 9th

of May, requested Sir J. Paimcefote to inform Mr. Greshamthat Her Majesty's Govermiient were unwilling to renew the

agreement with the United States of the 12th May, 1894,

relative to the sealing up of arms on board sealers duringthe close season in Bering Sea, because the possession of

arms was not contrary to the award of the Paris Tribunalof Arbitration, and because, as proved by the seizures of the

Wanderer and Favourite, the agreement had not in practice

worked for the protection of British sealers from unneces-sary interference.

His excellency was also requested to remind Mr. Gres-ham that United States naval officers have no right to seize

British sealing vessels, except under the order in council

for offenses against the British act of Parliament whichembodies the award regulations.

The circumstances in connection with the seizures of theWanderer and Favourite, above referred to, have been mostcarefully considered, after some delay occasioned by thenecessity of obtaining full information, including reportsfrom Admiral Stephenson, the commander in clfief on theNorth American station.

The Wanderer, while in the waters affected by the award,and during the close season, was boarded and the masterwarned by an officer from the IT. S. S. Yorktoini of the pro-visions of the award act.

A certain quantity of arms and ammunition was sealedup, and the master signed a statement that the firearms,

0'2 The Favourite.

etc., then produced were all that belonged to the vessel or

to any person attached to her. The seal skins on board

were counted, and the number amounted to 400.

On the same day the vessel was again boarded while

within the award area by an officer from the U. S. S. Con-

cord. The seals placed on the arms in the morning were

found to l)e intact, and the numl)er of seal skins on board

(•()rres]H)nded with the numl)er counted by the officer of the

YorLtniin.

Further search was, however, made, and in the extreme

forward part of the ship a shotgun, with 39 cartridges, were

found, which the mate said belonged to him.

The vessel was thereupon towed to St. Paul, Kadiak

Island, formally seized, and sent thence with a prize crew

to Unalaska, and handed over to Her Majesty's ship

Pheasant.

The grounds for the seizure, as given by the conunander

of the Concord, were ''the possession of an unsealed gun

and ammunition in contravention of the Bering Sea award

act, 1894, clause 1, paragraph 2, and clause 3, paragra})h 2,

as well as of section 10 of the President's proclamation."

The master protested, one of his grounds of protest being

that the gun and ammunition were the private property of

the mate, and had been hidden without his orders or knowl-

edge. The master also said that he was making direct for

St. Paul, a port in United States territory.

Admiral Stephenson, the commander in chief on jthe

North American station, ha.ving, after due consideration,

come to the conclusion that the vessel could not be success-

fully prosecuted, decided not to take proceedings against

her, and directed that she should be released.

The vessel, however, was unable to complete her voyage,

and the master, on behalf of those interested in licr, ad-

vanced a claim to the amonnt of the market value of 1,000

seal skins, $2r)0 on account of damage done to guns thi-ough

sealing uj), and $120.50 paid for provisions, wKh interest to

be added.

Appendix to the Answer. &?>

The Favourite was seized by the United States war ves-

sel Mohican while sealing in Bering Sea during the open

season. There were no firearms on board, with the excep-

tion of one rocket gun, to be used for signaling inirposes,

and this appeared on the ship's manifest, signed by the

collector of customs at Victoria. While the schooner's pa-

pers were under examination by an officer of the Mohican

the master produced the signaling gun and placd it on the

table before the examining officer, who expressed himself

satisfied, and entered the following in the schooner's log:

"Boarded the Favourite. Found log correctly

kept. No violation of regulations, as per log. One

shotgun unsealed."

The Mohican steamed off about 2 miles, but returned.

The same officer boarded the Favourite again and ordered

the master to take the schooner's papers and the signal gun

on board the Mohican. There he was informed that his

vessel was seized for having firearms on board.

Lieutenant Wadhams, who was in command of the Mo-

hican, stated the grounds for seizure to be that the vessel

had on board a double-barrel shotgun, which was found

upon trial to carry No. 10 gauge cartridges, and to shoot

accurately at least 50 yards, and that the possession of this

shotgun was in contravention of article 6 of the Paris

award and of the United States act of Congress.

The gun in question was carried for the sole purpose of

firing rockets as night signals. It was old, barely 11 inches

long in the barrels, with a pistol-handle grip of 9 inches,

and quite unfit for killing seals. Not only was the gun

mentioned in the ship's manifest, but the master stated'

that he was verbally authorized by the custom-house official

at Kyuquot, where, ]n'evious to the opening of the fishery

season, his fishing implements had been sealed up, to carry

it and rockets unsealed. Moreover, Connnander Hunter'

Blair, of Her Majesty's ship Pheasant, and Captain Clark,

&4 The Favourite.

• the commander of the Mohican, had agreed to authorize

Isealing vessels to carry the means of signaHng, and the

jformer stated that had application l)een mack' to iiiiii he

would certainly have permitted the Favourite to carry the

weapon on account of which she was seized. No cartridges

or shot of any kind were found on the vessel.

In spite of the master's protest, a prize crew was placed

on board the steamer, by which she was taken to Unalaska,

and there handed over to the commander of Her Majesty's

ship Pheasant, by whom she was ordered to proceed to Vic-

toria and report to the collector of customs. The latter

applied to the admiral for instructions, considering that

he was not justified, under the Bering Sea award act, 1894,

in taking any action against the vessel ; and the admiral re-

plied that, in his opinion, there was no ground for a prose-

cution, and, therefore, requested that the schooner should

be released.

The master has preferred a claim for $22,430, the amount

at which he estimates the loss incurred by the interruption

of his voyage.

It thus appears, both from the information obtained by

Her Majesty's Government and from the statements of the

United States naval officers themselves, that no evidence

existed of any unlawful iishing operation on the part of

either of these vessels.

Had the master of the Wanderer intended to violate the

regulations, he would presumably not have limited his prep-

arations to a single gun and a few cartridges; and it seems

highly improbable that, after having been boarded and hav-

ing had the skins on his vessel counted, he would have run

the risk of being discovered with fresh skins on board.

With regard to the Favourite, the evidence seems conclu-

sive that the gun foniid on board was intended solely for

signaling purposes, and Hint it "was not suita])le for killing

seals. The fact that no cartridges or shot of any kind were

found on the vessel affords presumption almost amounting

to proof that this view is correct.


It must also be remembered, in considering the case of

the Wanderer, that the arrangement for the sealing up of

fishing implements was not obligatory, but was to operate

only on the application of the master of a vessel traversing

Bering Sea for any legitimate purpose during the close

season as a protection to the vessel against interference by

any cruiser in the said waters.

The Favourite was seized during the open season, when

the agreement was not in force, though the entry made in

her log by the United States officer seems to indicate that

he was not cognizant of this fact.

The statements made by the United States officers of the

grounds of seizure show, moreover, that in both cases they

relied upon that part of section 10 of the United States act

of Congress which reads: "or if any licensed vessel shall

be found in waters to which this act applies, having on

board apparatus or implements suitable for taking seals,

but forbidden then and there to be used, it shall be pre-

sumed that the vessel in the one case, and the apparatus or

implements in the other, was or were used in violation of

this act, until it is otherwise proved."

That section has the obvious effect that without affecting

directly to enlarge the obligation which the award imposes

upon sealing vessels, it creates an artificial presumption of

guilt springing from facts which otherwise might not be

evidence of guilt at all, and thereby indirectly makes the

award weigh heavier on these vessels.

It is not, however, necessary to discuss the provisions of

the act of Congress. Whether an offense against that act

was committed or not by either the Wanderer or the Fa-

vourite, a point which seems open to doubt, especially in

the case of the Favourite, the officers of the United States

cruisers were not empowered to seize the vessels except

under the order in council for offenses against the British

act of Parliament which embodies the award regulations.

Those regulations do not prohibit the possession of fire-

9(3 The Favourite.

arms, uor do the Bering Sea award act and order in

council of 1S!)-I: contain any provision corresponding to

that in article 10 of the act of Congress. A duly authorized

officer of the United States is warranted in seizing a J3ritish

vessel if he believes, or has reasonable ground for believ-

ing, that the British law has been violated. But he is not

warranted in seizing her if there are no reasonable grounds

for that belief, nor is he warranted in applying to British

vessels the doctrine of presumptive guilt which is contained

in section 10 of the United States act.

The seizure of both the Wanderer and the Favourite was

grounded on what, even if it was an offense against the

United States law, was not an offense against British law.

For this reason Her Majesty's Government consider that

the officers of the United States cruisers were not justified

in seizing the vessels, and they feel bound to present to the

United States Government the claims for compensation

which have been made by the owners, and to request that

they may receive the consideration to which they are en-

titled.

You will read and give a copy of this dispatch to the Sec-

retary of State.

I am, etc.,

Salisbury.

EXHIBIT 22.

Lord Salisbury to the American Ambassador.

Foreign Office, August 30, 1895.

Your Excellency:

I have received and taken into consideration the dispatch

from the United States Secretary of State to Mr. Roosevelt,

which the latter was good enough to comnmnicate to mo on

the 3d ultimo, relating to the seizures of the British sealing


vessels Wanderer and Favourite by the U. S. cruisers Con-

cord and Mohican, for an alleged infringement of the Ber-

ing Sea award act of 1894.

AVith reference to the arguments contained in Mr. Olney's

dispatch, I would point out that if the Wanderer and the

Favourite had been arrested for any alleged breach of the

above-mentioned act, it is conceded that it would be contrary

to the intent and spirit of the legislation that the British

naval authorities should release the vessels before trial

before a court of competent jurisdiction, but it must be ob-

served that in the case of the Wanderer the ground of seiz-

ure as given by the commander of the Concord was the

possession of an unsealed gun and ammunition, in contra-

vention of the Bering Sea award act of 1894 and section

10 of the President's proclamation; and in the case of the

Favourite, as given by the commander of the Mohican, was

the possession of an unsealed gun, in contravention of Ar-

ticle VI of the Paris award and section 10 of the act of

Congress.

No allegation was made in either case that the vessels had

committed or attempted to commit any actual breach of the

Bering Sea award act of 1894.

Inasmuch, therefore, as it was clear upon the face of the

proceedings that the arrest was not justifiable, it does not

appear that the British naval authorities acted contrary to

the intent or spirit of the legislation in question. It is not

disputed that in the case of a vessel arrested upon an al-

leged breach of the English act of Parliament bearing on

the question additional breaches might be assigned, assum-

ing the seizing officer to be in a position to adduce evidence

of such additional breaches, but in this case, as has already

been pointed out, there was, up to the time of the release of

the vessels, no allegation of any such charge.

While it is conceded that it was never intended that the

naval authorities should take upon themselves to decide

questions which undoubtedly could only be decided by a

08 The Favouriie.

British court of aduiiralty, it was, on the other hand, equally

never intended that vessels should be interfered with, ar-

rested, and handed over to the naval authorities upon any

charges other than those which were the subject of the Ber-

ing Sea award and consequent legislation.

It is, moreover, quite clear, from the proceedings in these

cases, that the seizing officers purported to act under sec-

tion 10 of the act of Congress (Public, No. 48) of April 6,

189-1:, which is not binding upon British subjects.

I have, etc.,

Salisbury.

EXHIBIT 23.

The American Ambassador to the Secretary of State.

Embassy of the United States,

London, September 3, 1895.

(Received Sept. 12.)

Sir:

Having reference to the Department's No. 786, of July 9

last (by Mr. Adee, Acting Secretary), relating to the re-

lease by the British naval authorities of the sealing schoon-

ers Wanderer and Favourite in advance of and witliout

judicial proceedings to test the legality of the action, I have

now the honor to transmit, herewith inclosed, copy of a note

just received (and of my acknowledgment thereof dated

this day) from the Marquis of Salisbury, under date of

August 30, which is intended as a reply to the case of the

seizure of the two sealing vessels above referred to, and

which was presented to the foreign office by Mr. Roosevelt

under your instruction Iô. 749, of June 18 last.

Before making reply to Lord Salisbury's note T conceive

it better to transmit, for your consideration, an ex))ression

of my own views, which are respectfully submitted, on the

case as it appears in the correspondence.


Two points are conceded in his lordship's communica-tion, and which form the basis of the claim put forward bythe United States: First. ''It is not disputed that, in thecase of a vessel arrested upon an alleged breach of the Eng-lish act of Parliament bearing on the question, additionalbreaches may be assigned;" and, second, that "it was neverintended that the naval authorities should take upon them-selves to decide questions which undoubtedly could only bedecided by a British court of admiralty."But it is sought to qualify and impair both of these propo-

sitions by assuming, in connection with the conceded ad-missibility of supplementary evidence and ''the assignmentof additional breaches of the British act," that the navalofficers making such seizures "should be in a position toadduce evidence of such additional breaches;" and this is

followed by the allegation that "there was, up to the timeof release, no allegation of any such charge."

It cannot be doubted that the date of the judicial hearingis the date up to which evidence authorizing the seizure andassigning additional breaches relates, and not the date whenthe accused vessel was handed over to the naval officer ofher own nationality for the express purpose of having herseizure (as provided hf the British act) subjected to exam-ination and adjudication in the civil court, and that theassumption of judicial functions by such naval officer, andhis decision that no case has been then adduced or will bemade out by the time of trial, is wholly without warrantand is in violation of the British act as well as of the spiritand letter of the award.

It is therefore begging the question to allege that, be-cause vessels cannot be condemned for any other offensesor "upon any other charges than those which were the sub-ject of the Bering Sea award and consequent legislation,"that British naval officers are justified, when receiving ac-cused vessels from American captors for the sole and ex-press purpose of sending them for trial in the civil courts,

100 The Favourite.

in anticipating the date of such trial and the evidence which

may then and there be forthcoming, either nuder the orig-

inal charge or nnder such additional breaches of the British

act as may then be assigned ; for this would be the assump-

tion of judicial functions by a ministerial officer, in plain

violation of the provisions of the British statute, and of the

award, whose execution it was intended to enforce.

As to the concluding paragraph of Lord Salisbury's note

it would seem sufficient to say that, while we admit that the

authority for the arrest by a naval officer of the United

States of a British sealing vessel is restricted by the terms

of the British statute and the award it recites and professes

to carry into execution, yet the mere allegation by such

officer that he was proceeding under the authority of the act

of Congress (both acts being in pari materia, although not

identical in terms and in cooperative execution of an award

by which each Government was equally and honorably

bound) should not of itself be held to be conclusive, and to

warrant the summary release of the vessel without such

hearing and trial as were stipulated in the award and th9

laws of both nations, or to prevent the condemnation of

Her Majesty's judicial courts, should evidence be then and

there adduced of an infraction of the British statute and

violation of the award.

I have, etc.,

T. F. Bayard.


EXHIBIT 24.

The Acting Secretary of State to Lord Gough.

No. 188.


Washington, September 12, 1895.

My Lord:

In connection with this Department's note of July 1, 1895,

in regard to the inadequacy of the naval force provided bythe British Government for patrolling Bering Sea and the

North Pacific Ocean during the i)resent season, I have the

honor to transmit a copy of a report to the Secretary of the

Treasury from Capt. C. L. Hooper, commanding the UnitedStates patrolling fleet, dated St. George Island, August 14,

1895, in which it is stated that the British naval officers havemade no efforts to enforce the provisions of the Paris

award;that only one vessel, H. IM. S. Pheasant, is in Bering

Sea, and that she has taken no active part in the patrol.

Captain Hooper further states that the work of sealing uparms, boarding vessels, counting and examining sealskins to

ascertain if they correspond in sex and number with the

entries in the official logs, or whether any have been shot

within the prohibited waters, searching for arms, and guard-ing the 60-mile prohibited zone has been done and is beingdone by the United States cruisers unaided by the Britishnaval vessels.

Requesting that you will bring these facts to the attention•of your Government,

I have, etc.,

Alvey a. Adee,

Acting Secretary,

102 The Favourite.

EXTTTBIT 25.



Washington, October 1, 1805.

Excellency :

I have the honor to inform you that from a report dated

the 21st ultimo, received at the Treasury Department from

Capt. C. L. Hooper, E. C S., commanding the Bering Sea

fleet, it appears that on tlio morning of August 20 last, in

latitude 54° 54' 03" north, longitude 168° 31' 21" west, the

British sealing schooner Beatrice, of Vancouver, was

boarded by two officers from the revenue steamer Rush, and

found to have 147 seal skins on board, while her official log

recorded but 64, and that 4 of the skins showed evidence

that the seals had been shot, and that he seized the Beatrice,

her tackle, cargo, etc., for violations of the fifth article of

the regulations of the Paris award, set forth in the British

act of Parliament known as the Bering Sea award act, 1894.

In view of the report made by Captain Hooper as to tha

shooting of seals, the Treasury Department has instructed

that officer to prepare and file an amended declaration with

the commander of Tier Majesty's steamshi]i Pheasaitl,

specifying the killing of seals with firearms by the crew of

the Beatrice in Bering Sea. in violation of the sixth article

of the regulations referred lo and of the Bering Sea award

act.

I have, etc.,

Richard Olney.


EXHIBIT 26.

Opinion of the Attorney General.

Department of Justice,

Washington, D. C, October 3d, 1895.

The Honorable the Secretary of State.

Sir:

In the matter of the claims presented by the British Gov-

ernment for damages on account of the seizure by United

States cruisers of the British sealing schooners Wanderer

and Favorite, I have the honor to give my opinion as re-

quested by your letter of September 27th.

It appears from the letters of the Secretary of the Treas-

ury to yourself, dated June 12th and September 24th, which

you enclose, that these schooners were seized by American

cruisers, one in the North Pacific Ocean June 9th, 1894,

the other in Beliring Sea August 24th, 1894, and delivered to

British naval officers with a written statement of the facts

upon which the seizures had been made, which officers, with-

out in anjnvise invoking the action of the courts, released

them, having reached the conclusion, after investigation and

upon legal advice, "that no case could be made out against

them. '

'

The British naval officers, in releasing the schooners, ap-

parently proceeded on the theory that they were invested

with the authority of an ordinary examining magistrate or

court to determine whether the accused vessels should be

subjected to regular judicial inquiry or not. So acting,

they seem to have held that the statements of the United

States commanders, as well as the facts developed by their

own investigation, failed to show even ]irobable cases of vio-

lation of the laws for the preservation of the fur seals

passed in pursuance of the Award of the Tribunal of Arbi-

tration at Paris under the treatv between the United States

10-1 The Favourite.

and Great Britain, conelnded at Washington Febrnary 29tli,

1892. (See Act of Parliament, April 23, 1894, 57 Vict., ch.

2, 31 L. R. Stats. 4.)

The statements made and delivered by the United States

officers were to the effect that i)rohibited and unsealed fire-

arms, together with large numbers of sealskins, were found

on board the seized schooners. In the case of the Wan-derer at least, there were other circumstances of suspicion,

such as evasion and concealment. The alleged defects in

these statements were that they merely set forth as grounds

of seizure the facts above stated, but did not specifically

assert that seals had actually been taken contrary to law.

Tn other words, considering the statements as pleadings,

they set forth mere evidence and not the ultimate fact.

T find nothing in the British statutes, or in the orders and

instructions issued for the due execution thereof, which re-

quires any formal charge by officers making seizures. '

'Anendorsement of the grounds on which it was seized" on the

certificate of the vessel is required, when it is returned to

enable the vessel to proceed to port for trial (57 Vict., ch. 2,

Sec. 2. (1 ). Section 12 of the Act of Congress, authorizing

seizures of American ships by British officers provides for

the delivery with the ship of "any witnesses and proofs on

board." (Act approved April 6, 1894, 28 Stats. 52.) The

instructions of the Secretary of the Navy to the commanderof the United States naval force in Behring Sea, dated May4, 1894, a copy of which was sent by the Secretary of State

to the British Minister (Sen. Ex. Doc. 67, 53d Congress, 3d

session, page 124) required the commanding officer making

the seizure to draw uj) a declaration in writing and deliver

the same with the vessel, whether such delivery should be

made to British or American authorities {id. 126). I have

found no similar requirement in the British Act, Orders in

Council, or instructions, and the declarations directed by

the instructions to American officers were merely intended

to carry out Sec. 12 of the Act of Congress. These, as well


as the endorsement on the certificate above mentioned,

were manifestly required, not for the purpose of justifying

the seizures to other naval officers to whom delivery might

be made, but to indicate evidence for use in the courts where

proper charges would be formulated from the evidence pro-

duced. As all seizures are to be made by naval officers and

the vessels seized delivered to other naval officers, when not

taken direct to the judicial authorities, it could not have

been expected that the niceties of legal procedure should be

observed in such statements.

The authority of American cruisers to seize British ships

is found in the Act of Parliament above cited and in the

Orders in Council authorized thereby, which bear date April

30, 1894. Section 1 of such Orders provides that American

officers mav ''seize and detain anv British vessel which has

become liable to be forfeited to Her Majesty under the pro-

visions of the recited Act, and may bring her for adjudica-

tion before any such British Court of Admiralty as is re-

ferred to in section 103 of 'The Merchant Shipping Act,

1854' (which section is set out in the second Schedule to the

recited Act), or may deliver her to any such British officer

as is mentioned in the said section for the purpose of being

dealt with pursuant to the recited Act."

The mode provided by the Behring Sea Award Act for

dealing with vessels so seized is to subject them to legal pro-

ceedings in the British courts (Second Schedule, Section

103). Section 2 of said Orders in Council, which relates to

the conduct of British cruisers seizing American vessels,

provided that "such officer, after seizing and detaining a

ship of the United States in exercise of the said powers,

shall take her for adjudication before a court of the United

States having jurisdiction to adjudicate in the matter, or de-

liver her to any naval or revenue officer or other authorities

of the Thiited States." AVhile it is not ex])li('itly stated, it

is manifest that the intention was to su])stitute delivery to

the naval authorities of the country to which the vessel be-

106 The Favourite.

longs ill place of delivery to its judicial authorities, merely

for conveuience and not for the purpose of dispensing with

legal i)roceedings or having a trial by such naval author-

ities instead. Such delivery is a mere transfer of custody.

The law of each country requires that its vessels, whenseized by its own cruisers, shall be brought into court for

adjudication (Second Schedule, Act of Congress, su])ra,

Sees. 9 and 11), and intended to give to the cruisers of the

other country the same rights given those of its own (Act

of Parliament 3, (3), Act of Congress, Sec. 12).

It may be suggested that the commander of a cruiser con-

ducts an investigation in deciding whether to seize or not to

seize, and further that, after seizure, he may revoke his de-

cision and release. But two things would ])revent the con-

clusion that a naval officer, to whom delivery is made of a

vessel seized under the provisions of the treaty, has power

either to review or to investigate anew. One is the spirit of

comity shown l)y the Acts of both countries, which requires

a construction thereof not inconsistent with mutual confi-

dence and respect. The other is that the ]iower of British

officers receiving seized vessels from American cruisers is

expressly limited to bringing them into court for adjudica-

tion. (Orders in Council, Section 1, Second Schedule Behr-

ing Sea Award Act. Section 103).

Nothing is said in the Act of either country about liability

for wrongful seizures. If it be conceded, upon principles

of comity or otherwise, that such liability was contemplated,

it must be assumed that both countries had in mind the well-

settled principles of the law common to both relative to such

liability.

While the Acts of 1)()th countries are, of course, directed

only against actual cases of unlawful seal fishing, it would

be absurd to limit the right of seizure thereby conferred

upon each other's cruisers to vessels caught in the act. In

all other cases action must depend upon evidence and indi-

cations. This was recognized by the authorities of both


countries. See Instructions of Secretary of the Navy,

supra, p. 126, which adopts from "Instructions to British

Cruisers as to seizure" sent by the British Minister to the

Secretary of State (Senate Ex. Doc, supra, 116) the fol-

lowing: "whether the vessel has been engaged in hunting

you must judge from the presence of seal skins or bodies of

seals on board, and other circumstances and indications."

The possibility of mistakes in such cases is well known.

Certainly it could not have been intended by Great Britain

to have liability for wrongful seizures by American officers

depend upon any different rules from those expressly made

applicable to seizures by its own. These are merely the

rules of the common law in the analogous case of groundless

arrest or prosecution by the civil authorities. There is no

liability in any case where reasonable grounds for the seiz-

ure are shown, even when the court has discharged the ves-

sel. (Second Schedule, supra, Sec. 103.)

The schooners in question, having been seized by due au-

thority, have never been lawfully discharged. It is not

even suggested that the American officers who made the

seizures did not act in good faith, and they seem to have

acted on reasonable grounds of suspicion. My opinion,

therefore, is that the Secretary of the Treasury is right in

holding that there is no liability for damages on account of

such seizures, assuming that there was, in fact, no violation

of law by either of the schooners seized. "While voluntary

release by the seizing officer might dispense with judicial

discharge as one of the conditions of liability, this would

result only because such release would be an admission of

innocence. It will hardly be claimed that the release by

British naval officers operated as an admission by the

American officers who made the seizure.

Very respectfully,

JuDsoN Harmon,

Attorney General.

108 The Favourite.

EXHIBIT 27.

The Secret ay11 of State to the British Ambassador.

No. 363.



Excellency :

Yonr note of the lOtli ultimo preferring, on behalf of Her

Majesty's Government, certain complaints in regard to the

proceedings of the United States revenue cruisers in search-

ing and seizing British sealing vessels in Bering Sea and

the North Pacific without, it is alleged, sufficient cause ap-

pearing therefor, heretofore acknowledged by me on the

25th ultimo, having been referred to the Secretary of the

Treasury for consideration, I am now in receipt of Mr. Car-

lisle's reply, the substance of which I have the honor to

embody herein as expressing the views of this Government

in regard to the matter.

Three general grounds of complaint are specified in your

communication concerning the patrol by the Treasury De-

partment, during the past season, of the North Pacific

Ocean and Bering Sea, under the Paris award and the legis-

lation enacted by Great Britain and the United States, re-

spectively, for enforcing the same. These com])laints maybe summarized as follows

:

U That the seizures of vessels for alleged offenses were

made by officers of this Government on evidence obviously

insufficient.

2. That the right of search was exercised in cases where

there was no just groiiiKl to susjiect that an offense had been

committed.

3. 'I'hat the interference of United States revenue cutters

in the operations of British sealing schooners was vexatious

and inquisitorial.

Appendix to the Ansvcr. 109

As to the first ground of c'omi:»]aint, that British sealing

schooners were seized for alleged offenses on evidence ob-

viously insufficient, it appears that three British sealing

vessels wei'e seized by American cruisers during the past

season—namely, the Shelhij, in the North Pacific Ocean,

May 11, and the Beatrice and the E. B. Marvin on August

20 and September 2, respectively, in Bering Sea. Of these

vessels the Shelhij was condemned by British court; the

E. B. Marvin was acquitted, but without costs, the court

deciding that there was reasonable cause to believe that she

had violated the law and that the seizure, therefore, was

justifiable; and the Beatrice was acquitted on the ground

that the failure of the master to make the log entries re-

quired by the Paris award was not a violation of the Bering

Sea award act for which the vessel could be forfeited.

These facts, it is believed, will satisfactorily indicate the

discretion and good judgment shown by our revenue-cutter

officers in making these seizures, and will demonstrate that

the evidence of guilt was not "obviously insufficient."

As to the second ground of complaint, that the right of

search was resorted to when no just suspicion existed that

an offense had been committed, it appears that information

was received by the Treasury Department that dua'ing the

season of 1891: the law was violated sj^stematically by pe-

lagic sealers, by having shotguns concealed on board of the

vessels and using them in killing seals in Bering Sea; also

that the log entries showing the sex of seals killed were sys-

tematically falsified.

Under such circumstances commanding officers of revenue

vessels could satisfy their suspicions only by making a

thorough search of the sealing vessels met with during the

patrol. It would plainly be almost impossible to detect a

vessel actually in the act of violating the law bv killins:

seals in the dosed season or by firearms in Bering Sea. It

therefore bi^came necessary to board the vessel, to break

out the cargo, and to inspect the skins thoroughly to ascer-

110 ^lie Favourite.

tain whether tliey appoarod to liave been shot, if in Bering

Sea. or whetlier tliey appeared to liave been freshly lîlled,

if ill the elosed season.

In view of the dissatisfaction expressed in the communi-

cation of your excellency, this Government can only repeat

the expression heretofore made of its deep regret that the

regulations for the season of 1894, agreed upon by Great

Britain and the United States, as to sealing up arms and

equipments, could not have been continued during the

season of 1895. Those regulations provided an easy and

simple mode of satisfying the searching officer that no

breach of law had been or could have been committed. Bysealing u)) the arms and equi]iments much annoyance, which

otherwise would l)e inevitable, was avoided both by the mas-

ter of the schooner and by the searching officer. Inasmuch,

however, as Her Majesty's Government refused to agree

for the season of 1895 upon a continuance of the regula-

tions permitting this sealing u]) of arms and equipments,

or, in fact, upon any regulations, the only recourse left to

the Treasury Department was to order its officers in all

cases to make careful and thorough search as to infractions

of the law, whether by the use of contraband weapons or in

forbidden seasons.

In this connection it may l)e pi'oper to state that during

the past season the masters of twenty-eight British vessels

at Unalaska applied to the officers of the Treasury Depart-

ment to have their firearms sealed up, and expressed great

dissatisfaction at the refusal of the officers to accede to

their requests.

As to the third ground of complaint, that the officers of

the patrol fleet had been guilty of vexatious and inquisi-

torial interference, it seems necessarv only to renew the

assurance that there was no interference except a careful

examination of the vessel and cargo to ascertain whether

the skins were shot or freshly killed in violation of the

award and the British act of Parliament and orders in coun-

Appendix to the Answer. Ill

cil. It is respectfully submitted that the right to seize and

detain vessels, given to officers of the United States by the

Bering Sea award act and the orders in council, confers by

necessary implication the right to search ; and it is further

submitted that the right of search thus implied is as com-

plete as in the somewhat analogous case of searching neu-

tral vessels for contraband of war. Until the vessel is vis

ited and searched it can not appear whether its purpose is

legal or illegal, whether it is licensed or unlicensed, whether,

in short, it has violated the law or obeyed it.

It is further claimed in the communication of your excel-

lency that seizures under the act of Parliament can only be

made in cases where the British act has been violated ; that

under the British act and orders in council there is no power

of seizure merely because of the possession of forbidden

sealing apparatus and implements.

Nothing is contained in the instructions to the revenue-

cutter officers inconsistent with this claim. On the con-

trary, these officers have been carefully instructed that the

power to seize British vessels is limited to violations of the

British act, and must be exercised under British orders in

council. If the officer has reasonable cause to believe that

an offense has been committed, he is authorized, as this

Government understands, to seize the vessel under the

British law. To ascertain whether or not an offense has

been committed, the officer must examine the vessel, for

otherwise there could be no seizure except where the vessel

is caught in the very act of violating the law, which would

rarely happen.

As to the reference in your communication to an agree-

ment with the Secretary of the Treasury in the year 1894,

that the instructions to officers of the United States should

be similar to those given to the officers of the British navy,

your attention is invited to the following extract from the

instructions to British naval officers engaged in the patrol

for the year 1894, transmitted to this Department by the

112 The Favouriie.

Hon. W. P. Roberts. The letter of Mr. Rol)erts also in-

closes a copy of a letter from the secretary of Rear-Admiral

Stevenson, of the British navj^, in which it is stated that the

instructions for 1895 were precisely similar to those of 1894.

If the vessel which appears to be a sealing vessel

is fonnd in any waters in which at the time hunting is

prohibited, the officer in conmiand of Her Majesty's

ship should ascertain whether she is there for the

purpose of hunting, or whether she has hunted,

or whether she was carried through l)y stress of

weather, or by a mistake during a fog, or is there in

the ordinary course of navigation on her passage to

any place. If he is satisfied that the vessel has

hunted contrary to the act, he will seize her and order

her to proceed to a British port hereinafter men-

tioned; but, if the officer is of the opinion that no of-

fense has been committed, he should warn her and

keep her as far as he thinks necessary and is prac-

ticable under supervision. He must judge from the

presence of sealskins or bodies of seals on board and

other circumstances and indications whether the ves-

sel has been engaged in hunting.

The above instructions plainly contemplate that every

ship overhauled by a cruiser shall be carefully searched and

examined for the purpose of ascertaining w^hether or not a

violation of the law has been committed. Although limited

in terms to areas in which seal hunting at the time is pro-

hibited, yet clearly their spirit would seem to apply to

searches in Bering Sea, where seal hunting by lirearms is

at all times prohil)ited. The right of seai-ch ]ilainly implied

by these instructions lias, jiowever, rarely if ever been ex-

ercised by British cruisers, foi' the reason that during the

season of 1894, although the United States (iovci-nment fur-

nished twelve vessels for the patrolling fleet, at an expense,

excluding pay of officers, crews, and rations, of $190,554.49,

Appendix to the Answer: 113

only one patrolling vessel was furnished by the British Gov-ernment. Furthermore, during the season of 1895, althoughfive United States revenue vessels patrolled the award area,at an expense of $69,064, only one, the Pheasant, was fur-nished for the patrol by the British Government. Further-more, our official reports are to the effect that the Pheasantremained almost constantly in Unalaska Harbor dilring theseason when sealing was permitted in Bering Sea, talking

no part in the ])atrol.

The reference in the communication of your excellency tothe protest annexed to the letter of Isaac A. Gould, ownerof the schooner Katherine, as to the action of the UnitedStates revenue cutter with regard to the schooners Websterand Willard Ainsivorth will receive most car.eful investiga-tion by the Treasury Department. It may also be addedthat the form of clearance to be granted in the future by therevenue-cutter officers stationed at the island of Atton toBritish sealing vessels omits any reference to the Presi-dent's proclamation or to the legislation of Congress.

I have etc.,

Richard Olney.

Sir

EXHIBIT 28.


British Embassy,

Washington, June 25, 1896.

With reference to your note No. 201, of September 19last, and to previous correspondence in regard to the pres-ence of counsel on behalf of the United States Governmentat the trials of British vessels seized for violation of theprovisions of the Bering Sea Award act, I am authorizedby Her Majesty's secretary of state for foreign affairs to

114 • The Favourite.

inform j'oii that Her Majesty's Government see no objection

to the cases being watched, as pro])Osed, by counsel for the

United States Government, and that they are willing that

the counsel so em])loyed should be permitted to examine the

pleadings and to make suggestions to the Government

counsel.

Such suggestions should, however, be confined to the ob-

ject of protecting United States interests, and could not be

admitted as regards the enforcement of the Bering Sea

Award act, the enforcement of that act l)eing the duty of

Her Majesty's Government.

I have further been instructed, while signifying to you the

assent of my Government, with the limitations specified

above, to the proposal made in your note above mentioned,

to ascertain the views of your Government on the following

point

:

In existing circumstances Her Majesty's Government are

unable to consent to the I hi i ted States Government being

recognized in the trials in (piestion as a ])arty to the litiga-

tion with a "locus standi" before the court; l)ut the situa-

tion would be altered if the United States Government were

to enter into an agreement to satisfy the judgment of the

court if the seizure should be held to be wrongful. They

would then have an interest in the result of the case which

would make it reasonable that they should in some form

take an active part in the conduct of the proceedings.

The officer who actually made the seizure might become

formally res])onsible for the conduct of the prosecution and

for any damages which the court might award, and if the

United' States Government should be unwilling to assent to

sucli nil agreement for the payment of danaages merely

upon the terms of being admitted to watch the case and

make suggestions, an ;in niigement might be made under

which they should cinploy solieitois and counsel and con-

duct the prosecution of the suit in the name of the Crown.

This would insure that the United States case would be pre-


sented to the court not only adequately, as at present, but in

a manner consonant with their special views in each par-

ticular instance.

Her Majesty's Government would be glad to learn

whether this suggestion meets with the approval of your

Government, and to receive any observations upon it which

they may wish to offer.

I have, etc.,

Julian Pauncefote.

EXHIBIT 29.

Opinion of the Court in the Case of the E. B. Marvin.

(4 Exchequer Eeports of Canada, 457.)

Davie^ C. J. L. J.:

This was an action for the condemnation of the British

vessel E. B. Marvin, her equipment and everything on board

of her, and the proceeds thereof, instituted by Arthur Yer-

bery Moggridge, commander in H. M. S. Royal Arthur, on

behalf of Her Majesty, on the ground that at the time of the

seizure presently mentioned the said vessel was in the Behr-

ing Sea fully armed and equipped for taking fur seals, and

was engaged in fur seal fishing in the Behring Sea from the

9th August, 1895, to the 2d September, 1895, continuously,

and did during the said time use firearms and explosives

for the purpose of killing fur seals, contrary to The Behring

Sea Atuard Act, 1894.

The facts of the case, as proved before me, show that the

said vessel, William Douglas Byers, master, left the port of

Victoria on the 11th January, 1895, for the North Pacific

on a fur sealing voyage, fully manned and equipped with

the necessary outfit for seal fishing, including a supply of

firearms and explosives. The Bering Sea Award Act, 1894,

which, by article G of the first schedule, makes it unlawful

116 The Favourite.

thereafter to use firearms and explosives in fnr seal fishing,

came into force on the 23d April, 1894, after the Marvin

had left Victoria and whilst she was prosecuting her voyage.

On the 18tli of June, 1895, Captain Byers received notice

of the Act, with instructions to proceed to Copper Island

for the purpose of getting his firearms sealed up, and on the

27th July reported with his vessel to Captain Carmine, the

American custom house officer at Copper Island, who in-

formed him that he had no authority to seal up his arms

and ammunition, but after making a manifest of the things

on board gave Captain Byers a clearance permitting his

vessel to proceed to the Behring Sea for the purpose of

hunting seals. The manifest with which Ca|)tain Byers

went to sea from Copper Island included 1,152 loaded brass

shells, 903 empty brass shells, and 138 empty paper shells.

Having proceeded on her voyage, the vessel was overhauled

and searched, but allowed to go free on the 21st August by

the U. S. S. Grant, .and by the U. S. S. Perry on the 2Gth

August, and on the 2d September, after the hunters had left

the vessel for the day's sealing, the U. S. S. Rush hove in

sight and boarded her. The cargo then on board of 330

seal skins was diligently examined by the officers of the

Rush, and, with the exception of one skin, showed no ap-

pearance of anything but spearing. In one skin, however,

a hole was discovered which might have been caused by a

bullet or buckshot, and the officers of the Rush believed that

it was so caused, and a count of the ammunition on board

showed a considerable difference from the manifest; the

actual count made by the officers of the Rush showing 1,081

brass shell cartridges loaded, 734 brass shells empty, 44

paper shells loaded and 170 paper shells empty. Under

these circumstances the Marvin was placed under seizure.

The hunters came home in the afternoon of the same day

with a further catch of some forty seals, all taken ap})ar-

ently in a perfectly legitimate manner, as the hunters had

neither firearms nor ammunition in their boat.


The Marvin was taken to Ounalaska and there handed

over to Lieutenant Garforth, of H. M. S. Pheasant, who

again counted the ammunition. His count differed some-

what from that of the Rush, and besides those cartridges

and shells formerly counted by the officers of the U. S. ves-

sel, two cardboard boxes of empty brass shells were pro-

duced by Captain Byers from the Marvin's lockers, making

together, with those already counted, a total of loaded and

unloaded brass and paper cartridges and shells amounting

to 2,194, or within one of the number appearing on the mani-

fest, but differing in kinds—Lieutenant Garforth 's count

showing 1,104 brass shells loaded, as against 1,152 on the

manifest; 742 brass shells empty, as against 903 on the

manifest; 305 paper shells empty, as against 138 on the

manifest, and 43 paper shells loaded, while there were no

paper shells loaded on the manifest.

Captain Byers tells us that when the officers of the Rush

made their count, he knew that there were more shells some-

whore, and asked the officers to wait until the hunters came

back, as they would probably know where the missing shells

were, and that when the hunters came back, they did inform

him of the shells which were afterwards produced from the

lockers. He further tells us that the count made at Copper

Island and appearing on the manifest was made by the hunt-

ers, whose word was taken for the number entered on the

manifest. He accounts for the discrepancy between paper

and brass shells by the one being then mistaken for the

others.

I am of opinion that Captain Byers' explanation is a

reasonable one. LTpon inspection of the cartridges I ob-

serve that the butt of the brass and paper cartridge is iden-

tical, both being of brass, and I can very well believe that in

counting them in the boxes this mistake might easilv have

occurred. I attach no im]iortance to the hole in the skin.

Mr. Lubbo, a fur dealer, who was called as a witness, whilst

expressing his belief that a hole pointed out by him was a

118 The Favourite.

buckshot hole, pointed out a different hole and one which

had not been perceived by the ofificers of the Rush. I amby no means persuaded that either liole was caused by a

shot, although of course either might have been; but then

again, even if caused by a shot, it by no means follows that

the shot was from the Marriii. On the contrary, it is quite

possible that if the hole was a shot wound such shot might

have been fired by a stranger some time before, for Mr.

Lubbe tells us that the wound would not heal over for two

or three weeks, and he also tells us that it is no uncommonthing to find nests of old shot in the skins of seals killed by

spearing or in other ways. Captain Byers, who gave his

evidence in a straightforward and unequivocal way, assures

us that no shooting whatever took |)lace, and the fact that

the hunters came back after the seizure without arms or

ammunition, and the further fact that no indication what-

ever of shot were found in any of the other skins, and the

tally, within one, of the total count on the manifest, strongly

corroborate him.

I think that the discrepancy at first in the number and in

the kind between the ammunition found and that described

in the manifest created sufficient suspicion to warrant the

arrest; but this suspicion, T think, has been satisfactorily

cleared up by Captain Bjêrs.

The suit will, therefore, be dismissed without costs.

Judgment accordingly.


EXHIBIT 30.

The Case of the Ship Beatrice.

(5 Exchequer Court Eeports of Canada, 160.)

British Columbia Admiralty District.

Her Majesty the Queen, Plaintiff,

and

The Ship '^ Beatrice," Defendant.

Wrongful arrest of merchant ship hy Crown—Damages—Interest.

Where a merchant vessel was seized by one of Her Majesty's ships, acting

under powers conferred in that behalf by The Bcliring Sea Award Act.

1894, and such vessel was found to be innocent of any offence against the

said Act, the court awarded damages for the wrongful seizure and deten-

tion together with interest upon the ascertained amount of sucli daniages.

This was an assessment of damages taken pursuant to the

judgment delivered on the 18th November, 1895, dismissing

the action for condemnation of the ship, and directing a

reference as to the damages to which the ship was entitled

for her illegal arrest and detention. The main case is re-

ported in Exchequer Court Reports, vol. 5, page 9.

Hon. C. E. Pooley, Q. C, appeared for the Crown

;

A. E. M. McPhillips, Esq. (with him G. H. Bernard), for

the owner of the Beatrice.

Davie (C. J.), L. J., now (July 28th, 1896) delivered judg-

ment.

This was an assessment of damages arising out of the

seizure of the sealing schooner Beatrice by the United

States revenue steamer Bush on the 20th August, 1895.

Upon the trial before me of the action for condemnation of

the ship for alleged infraction of the Behring Sea Award

1 20 The Favourite.

Act, 1894, 1 dismissed the action on the ground that the seiz-

ure was unlawful, and I directed a reference as to the dam-

ages sustained by the owners of the Beatrice on account of

her unlawful arrest and detention.^

The arrest took place on the 20th August, 1895, in latitude

54.54 north and longitude 168.31 west, whilst the vessel

was engaged in seal fishing. She had then caught 202 seals,

having an outfit of six boats and two canoes and a crew of

18 white men, but no Indians. She had been fishing since

the 2d of August, and under instructions to the master given

by the owner would probably have continued fishing until

the end of the season, which is shown to be the 20th Septem-

ber, several of the vessels having continued until that date,

making good catches up to the last day; for instance, the

Walter Bich caught 72 skins on the 9th September, and 36

oil the 18th; the Ainoho 137 on the 9th September, 36 on the

17th and 54 on the 19tli; the Florence M. Smith took 69 on

the 20tli September. These vessels were all sealing in Belir-

ing Sea the same as the Beatrice, and although they had

more boats and more men than the Beatrice it is useful

to refer to their catches as showing that it would have prob-

ably been profitable for the Beatrice to have continued seal-

ing up to the last day. There were some forty vessels, in-

cluding the Beatrice, sailing out of Victoria engaged in seal-

ing that year, and Mr. Godson, whose duty it was under the

Paris award to keep a record of the industry, informs us

that the average catch per schooner was 897.95, or of about

70 to each boat or canoe, it has been contended on the

part of the Crown that in assessing damages I should pro-

ceed upon the average catch per boat, but I think this would

afford hardly a fair estimate for the Beatrice.

In the first place, Mr. Godson's average includes the

catch of the Beatrice, which had only just commenced seal-

ing when seized, as also of the E. B. Marvi)/, which was

seized on the 2d September when she had caught only 376

'See 5 Ex. C. R., 9.


seals. These seizures, therefore, reduce the average which

would otherwise be shown. Moreover, many of the other

vessels had quit sealing before the 20th September, whereas

the Beatrice was provisioned to, and had instructions^* to

continue until, the 20th. The catches are shown to have

been heavier after the 20th August than they were before

that date. Some of the vessels took as high as one hundred

and more to the boat; the BoreaUs, a vessel of only 37 tons

register, with twenty-one white men and six boats, taking

as high as 123 seals to the boat.

The seizure in this case having been established as

wrongful, the defendant is entitled to substantial damages,

the criterion of which is the whole injury which he has sus-

tained thereby. In the Consett Case,^ where a chtirter-

party was lost in consequence of detention caused by a col-

lision in which the defendant was to blame, the measure of

damages was held to extend to the loss of the charter.

The defendant's case here stands upon at least as high a

footing as that of the Consett} Here, T think I am bound

to allow such an amount as would represent the loss of an

ordinary and fair catch if the voyage had been extended

until 20th September.- I think that 90 seals to the boat

would have been an ordinary and fair catch for the Beatrice

to have made; as the Borealis with only three more mentook 123 seals, it is not unreasonable to presume that the

Beatrice would have taken at least 90. This, for eight

boats, including canoes, would make 720 seals, or 518 morethan were taken.

The evidence shows that the agents for the Beatrice, R.

Ward & Co., who were also the agents for several of the

other schooners, sold all of their catches at Victoria, and

realized $10.25 per skin, including the 202 caught by the

Beatrice before she was seized. T think the same price

must be allowed the Beatrice for her estimated additional

"L. R. 5 p. D., 232.

•The Argentwo, L. R., 14 App. Cas., 519.

122 The Favourite.

catch of 518 seals, or $5,309.50. From this has to be de-

ducted $4: per skin, which it was proved wouhl amply cover

all expenses of the lay to which the sealers would have been

entitled as well as all wages. There will also be deducted

$74 for the tinned goods and two barrels of beef which

would probably have been consumed had the Beatrice com-

pleted her voyage, but which jMr. Doering had restored to

him after the vessel was released. The remainder of the

provisions were mildewed, eaten by rats and spoiled whilst

the vessel was under arrest. There can be no deduction in

respect of these. These deductions leave a balance of

$.*),ir)3.50 in I'nvor of Mr. Deering, for which sum, together

with interest at the rate of 6 per cent per annum from the

20th of September, he is entitled to judgment against Her

Majesty, with costs.


""

Appendix to the. Answer. 12S

EXHIBIT 31.

The Case of the Ship Aurora.

(5 Exchequer Keports of Canada, 372. )

British Columbia Admiralty District.

Her Majesty the Queen, Plaintitf,

and

The Ship '

' Aurora, '

' Defendant.

Maritime laiv—Behring Sea Aivard Act, 1894—Circum-

stances justifying arrest—Burden of proof.

A vessel had ou board, witliiu prohibited waters, certain skins with holes

in them whicli appeared to have been made by bullets.

Held, that this was sufficient reason for the arrest of the vessel, and that

the burden of showing that firearms had not been used was imposed on

such vessel.

This is an action in rem for condemnation of the ship for

an alleged infraction of the regulations respecting the

taking of seals in Behring Sea.

C. E. Pooley, Q. C, for the Crown;

H. D. Helmcken, Q. C, for the ship.

By the statement of claim it was alleged as follows

:

1. The ship Aurora is a British vessel registered at the

port of Victoria, in the province of British Columbia.

2. The said shi]) Aurora, Thomas H. Brown, master, was

seized by W. H. Roberts, a captain in the Revenue Cutter

Service of the United States, commanding the United States

revenue steamer Rush on the 10th day of August, 1896, in

the Behring Sea, in latitude 55 degrees 44 min. 30 sees. N.,

longitude, 172 degrees 11 min. ^Y. from Greenwich.

3. The said shi]) Aurora at the time of her seizure as

aforesaid was fully manned and equipped for the purpose

124 The Favourite.

of killing, capturing or pursuing seals, and had on board

thereof firearms and annnunition, loaded cartridges, pow-

der and shot, and ball, and had also on board at the time of

her said seizure one hundred and twelve fur seal skins in-

cluding four fur seal skins which had been killed in the

Behring Sea by the use of hrearms by some person in such

ship.

4. The said ship Auroia was continually engaged in fui-

seal lishing from the first day of August to the tenth day

of August, 1896, inclusive of the date of the seizure afore-

said and during all this time had on board guns, rifles,

shooting implements and loaded cartridges and empty

cartridge cases for use in the said guns and rifles, and also

powder and shot and the necessary apparatus for filling

cartridges; and during the times between the said first day

of August and the said tenth day of August did employ and

use the said guns and firearms and explosives in the fishing

for, and for the i)urpose of, killing the said fur seals or

some or one of them within the waters of the Behring Sea

aforesaid.

5. The said ship Aurora was sent to Unalaska by the said

Capt. W. H. Roberts, and from thence she was ordered by

Ernest Fleet, the Commander of Her Majesty's ship Icarus,

to proceed to the port of Victoria and report to the Collector

of Customs, where she arrived on the iifteenth day of Sep-

tember, 1896.

Algernon H. Hotham, a Lieutenant in ITer Majesty's ship

Imperieuse, claims the condemnation of the said ship Au-

rora and her equipment and all on board of her and the pro-

ceeds thereof, on the ground that the said ship at the time

of the seizure thereof was in the Behring Sea fully armed

and efiui])ped foi- taking fui- seals, and was engaged in fur

seal fishing in tlic Behring Sea from the first day of August,

1896, to the tenth day of August, 1896 (inclusive) contin-

uously and during the whole of the said time had on board

the said ship Aurora firearms and explosives and numerous

Appendix to the Ansivet. 125

fur seal skins, and did, during the said time, use the said

firearms and explosives for the purpose of killing the said

fur seals contrary to the provisions of the Behring Sea

Aivard Act, 1894.

The statement of defence and counter-claim were as fol-

lows:

1. The defendants admit paragraphs 1, 2, and 6 of the

plaintiff's statement of claim.

2. The defendants do not admit so much of paragraph 3

as alleges that at the time of seizure the said ship Aurora

had on board four fur seal skins which had been killed in

the Behring Sea by the use of firearms by some person

in such ship.

3. The defendants do not admit so much of paragraph 4

as alleges that between the first and tenth days of August

the said ship did employ and use the said guns and firearms

and explosives as therein mentioned in the fishing for, and

for the purpose of killing, the said fur seals or some or one

of them within the waters of the Behring Sea.

4. The defendants say that at the time of her clearance

at the port of Attn, and at the time of her seizure the said

schooner had in addition to the guns, implements and ex-

plosives mentioned in paragraphs 3 and 4, thirty four

spears and seventeen spear poles.

5. The said vessel employed six boats for the purpose of

killing, capturing and pursuing the said animals known as

fur seals.

6. The defendants in answer to the whole of the plain-

tiff's claim say that the said four fur seal skins were killed

in the manner as is by the provisions of the Behring Sea

Aivard Act, 1894, allowed and not otherwise.

Counter-claim.

7. By way of counter-claim the defendants say as follows

:

They repeat the several allegations hereinbefore made and

say:

126 The favourite.

1. That the officers making the seiziirehacl no reasonable

cause to believe that the said vessel Aurora had been used

or employed in contravention of the Behring Sea Award

Act, 1894, or any of its provisions

2. That at the time of the said seizure the said schooner

was engaged in lawfully pursuing the killing of fur seals,

and at no time during the times alleged was the said vessel

engaged or employed or used contrary to the said Act.

3. That the said seizure was illegal.

4. That when the said vessel was under seizure at Una-

laska one sealing boat was stolen therefrom with a quantity

of provisions amounting in value to $100.

5. That the defendants have suffered damage by reason

of the said seizure and detention of the said vessel.

The defendants claim:

1. The restitution of the said vessel Aurora and her cargo

and everything on board of her as on the day of seizure.

2. Judgment against Her Majesty for the damage occa-

sioned to the defendants by the seizure and detention of the

said vessel Aurora and for the costs of the action.

3. Payment of the said sum of $100.

4. To have an account taken of such danuige.

5. Interest at the rate of 6 per cent on the amount allowed

from the 20th day of September, A. D. 1896, until judgment.

6. Such further and other relief as the nature of the case

may require.

Issue joined.

The case came on for trial at Victoria, B. C, on the 3d

December, 1896, before the Honourable M. W. Tyrwhitt

Drake, Deputy Local Judge for the Admiralty District of

British Columbia,

Drake, D. T.. .7. now (7tli December, 1896) delivered judg-

ment.

This vessel, a British schooner, had lieen sealing around

Japan and arrived at Attn, in Behring Sea, oti llic 20tli July,

1896. She had arms and ammunition on board. The Cap-


tain requested Lieutenant Barry, of the United States ship

Grant, to inspect the arms and ammunition, and a record of

all that was then produced was entered in the official log.

They commenced sealing on 1st August in Behring Sea.

On 10th August she was boarded by the Rush, and the atten-

tion of the officer who boarded her was called to four skins

which had been put aside as having holes caused by gaffs.

He said he did this in pursuance of instructions from Lieu-

tenant Berry, of Attu.

The skins were sent on board the Rush and after a care-

ful examination by the officers of the Rush, the conclusion

arrived at was that these seals had been shot.

The guns and ammunition were examined and checked

and some small discrepancy was discovered, which was ex-

plained afterwards.

This examination was just as ineffective as the first one

spoken of because there was no search of the vessel, and no

evidence to show that there was not other ammunition on

board. The vessel was ordered to Unalaska, and a further

count of ammunition made. While there two of the crew

deserted and took away one of the ship's boats and some

provisions, a claim for which was made against the Crownby way of counter-claim.

From the evidence adduced, the conclusion I have arrived

at is that the seals whose skins were in question had been

shot. They had also been speared, but the evidence did not

in my opinion establish the fact that the seals had been shot

by those on board the schooner.

The reason for putting these skins to one side was diffi-

cult to appreciate. The Captain said that the United States

officer at Attu had asked him to put aside all skins that had

shot or gaff holes in them. As it appears that the majority

of seals speared have to be brought to the boat by the gaff,

it must follow that gaff holes, if carefully searched for,

would be apparent in the majority of skins. The Captain

denied that these seals were shot ; but stated the holes were

128 The Pavourite.

only gaff holes, and that the holes which were in the skins

when taken on board the Rush, and which are apparent now,

were made by rats. Without discussing the evidence in de-

tail there was in my opinion sufficient reason for the arrest

of this vessel, and the burden of showing that iirearnis had

not been used was imposed on the vessel.

I therefore dismiss the claim with costs.

With regard to so much of the counter-claim as relates

to a boat and provisions being stolen while the schooner was

in charge of the authorities at Unalaska, it was shown that

the master was in command and had full control of the crew

and that two of the crew deserted and stole a boat and some

provisions.

The seizure of the vessel, therefore, had nothing to do

with the stealing of the boat. I therefore dismiss the

counter-claim, without costs.


EXHIBIT 32.

The Case of the Carlotta G. Cox.

(XIII British Columbia Eeports, 460.)

Admiraltij laiv—Seizure and condemnation—Behring Sea

Atvard Act, 1894—Illegal sealing—Evidence of offence—Onus—Failure to make entries in official log—Seizure by

United States Revenue Cutter—^^Duly commissioned and

instructed.''^

Defendant schooner \v;is on the 20(li of May lioarded I».v an American reve-

nue cutter in pursuance of the F.elirinK Sea Award Act. 1804. within the

prohiI)ited area defined in the Act. She then liad anions the sealsldns

on board six skins of frcsldy kiHed seals, which (lie master coiitended hadbeen killed before tlie close season connnenced ( l^t of .Mayi. and outside

the prohibited zone, viz : on the 2Ttli of April

:

Beld, on the evidence that, the skins were taken during the close season.


status of an officer "duly commissioued and instructed" by the President

of the United States of America to seize a British vessel pursuant to the

Behriug Sea Award Act, 181)4, considered.

Remarks on the effect of said act since the field of pelagic sealing in Behr-

ing Sea has been entered by subjects of a power not a party to the agree-

ment between Great Britain and the United States of America under the

statute.

Action tried before Martin, Lo. J. A., at Victoria on the

4th of February, 1908, for the condemnation of the Carlotta

(i. Cox, under the provisions of the Behring Sea Award Act,

1894.

Peters, K. C, for the Crown.

Luxtou, K. C, for the ship.

7th March, 1908.

Martin, Lo. J. A.

:

On the 29th of May, 1907, shortly after 7 a. m., the sealing

schooner Carlotta G. Cox, John Christian, master, a British

vessel registered at Victoria, was boarded, searched and

detained by the United States revenue cutter Rush in the

North Pacific Ocean off Yakutat Bay, in latitude 59° 10" N.

and longitude 141° 19" W., being suspected of contravening

the Behring Sea Award Act, 1904, which, inter alia, forbids

subjects of Great Britain and the United States of America

from pursuing, killing or capturing fur seals during the

close season (beginning on the 1st of May and extending to

the 31st of July) on the high sea north of the 35th degree of

north latitude and eastward of the 180tli degree of longi-

tude. Later, and on the 4th of June, the schooner was for-

mally seized at Sitka, where she had been towed by the

Rush, and she was thence towed to Port Simpson, B. C,

where she was handed over to Captain Hackett, commander

of the Canadian Government steamer Quadra, who ar-

ranged with Captain Christian that be should take the

schooner to Victoria and deliver her to the collector of cus-

toms thei-e, which was done.

At the time of the first searching on May 29th, there were

77 fur seal skins in the schooner's salt room, of which the

130 The Favourite.

six top ones were very green, with blood on them so fresh

that it soiled the fingers ; the 7th and following skins were

quite distinct in appearance, not fresh nor moist, but cured.

On the 4th of June when these skins were again examined

they had changed in appearance so that they could not be

distinguished from the others ; when the said six were first

seen they had a thin layer of salt on them. The schooner's

log was not written up, but the master said he had a note-

book with pencil entries which he produced and said con-

tained the particulars of seals killed, from which he claimed

to be able to make the entries in the log required by Article 5

of the First Schedule of said Act, and later he did, before

reaching Sitka on the -Ith of June, make certain entries

therein shewing his total catch to be 133, out of which 56

skins had been landed at Hesquiat, V. I., on April 22d, for

shipment to Victoria.

The schooner was fully manned and equipped for sealing

and was admittedly within the prohibited area when seized,

but the contention of her captain is that all the seals had

been taken before the close season and outside of the ])ro-

liibited area. At the time she was first discovered, about

6 a. ni., l)y the Bush she was lying-to, not sealing; the

weather was clear, and Mount St. Elias could be distinetl\-

seen, 68 miles away. That locality is well known to sealers

as the Fairweather sealing grounds and fur seals had been

seen by the Rtish in the vicinity for several days before,

and at the time of search a Japanese sealer was engaged in

sealing within five or six miles of the Carlntia G. Co.r with

several boats out, and other Japanese vessels had jire-

viously been sighted sealing in the vicinity and using fire-

arms, the use of which is forbidden British and United

States subjects by Article 6 of the said First Schedule; as

one of the officers of the Rush described it: "Japanese ves-

sels were sliooting all round there," iiiid though the Rush

boarded one of them on the same morning, shortly after she

had searched and detained the Carlotta G. Cox, nothing


could be done to stop it because Japan is not a party to the

Treaty between Great Britain and the United States of

America upon which the said Behring Sea Award Act, 1894,

is founded.

With resj)ect to the said six green skins I am satisfied,

largely upon the convincing evidence of the pilot of the

Rush, James W. Keen, who has had a long experience in

salting, overseeing and examining sealskins in the waters

in question, and in connection with seizures, that the seals

from which they were taken had been killed within four

days before the 29th of May at the outside, and possibly

some not longer than 24 hours. But even taking the killing

to have been within four days what explanation is offered

by the master? Nothing that is satisfactory to this Court,

and in the circumstances the entry in his log which states

that the last killing of seals took place over a month before,

viz : on the 27th of Ajiril when 25 were captured, is entitled

to no credit. The master was not brought forward as a

witness to explain this suspicious circumstance and I have

no hesitation on all the facts in rejecting the suggestion

that he happened to be in the locality in question hunting

for sea otters, or on his way to Kadiak Island or the Shu-

magin Islands for that purpose. It was laid down by this

Court in The Minnie (1894), 3 B. C. 161, 4 Ex. C. R. 151, 23

S. C. R. 478; and in The Shelby (1895), 4 B. C. 342; and fol-

lowed by a long line of cases ending with The Queen v. TheShip Otto (1898), 6 Ex. C. R. 188; that the statutory onus

upon the master to explain his conduct in circumstances

similar to these is a strong one, but, like the master in the

Shelby case, he did not come forward (though this wasdone, e. g., in Re Ainoka, (1894), 3 B. C. 121) to discharge

that onus, nor was any reason given for his failure to doso ; therefore I am satisfied on all the facts tliat his schooner

was emi)loyed in the unlawful killing of seals as charged.

There is a further charge, in i)aragra])h 9 of the state-

ment of claim, that proper entries were not made in the offi-

132 The Favourite.

cial log giving the particulars of killing as aforesaid and

the condemnation of the vessel is also asked on that ground,

but it has been already decided by this Court in The Bea-

trice (1895), -1: B C. 347, that such neglect is not one which

attaches any penalty or forfeiture to the ship, though the

master is personally liable to suffer the statutory conse-

quences, therefore it is unnecessary to consider that point

in relation to the schooner. With respect to the decision in

The Beatrice case, it may be that, as Mr. Luxton contends,

full consideration was not given to section 4 of the said Act,

nevertheless Mr. Peters is justified in claiming it as an ex-

l)ress decision on the point in his favour, by which I ambound.

But the objection is raised that the seizure here was un-

lawful in that the commander of the Rush is not shewn to

have been "duly commissioned and instructed by the Presi-

dent" to seize a British vessel, as is required to be done by

section 1 of the Imperial Order in Council of 30th April,

1894, or that the name of the United States vessel making

the seizure was beforehand '^communicated by the Presi-

dent of the United States to Iler Majesty as being a vessel

so ap]:>ointed for that ])urpose, " as is also required by said

Order in Council. And it is also objected that the com-

mander of the Rush neither brought the schooner "for ad-

judication before any such British Court of Admiralty"

nor "delivered her to any such British Officer as is men-

tioned in the said section (103 of the Merchant Shipping

Act, 1854) for the purpose of being dealt with pursuant to

the recited Act" (?'. e., Behring Sea Award Act, 1894). Said

section 103 is as follows:

"103. * * * And in order that the above pro-

visions as to forfeiture may be carried into effect, it

shall be lawful for jniy commissioned officer on full

]jay in the military or naval service of Tier Majesty,

or any British officer of customs, or any British con-

sular officer, to seize and detain any ship which has,

Appendix to the Ansiuer. 13J

either wlioll}^ or as to any share therein, become sub-

ject to forfeiture as aforesaid, and to bring her for

adjudication before the High Court of Admiralty in

England or Ireland, or any Court having admiralty

jurisdiction in Her Majesty's Dominions; and such

Court may thereupon make such order in the case as

it may think fit, and may award to the officer bring-

ing in the same for adjudication such portion of the

proceeds of the sale of any forfeited ship or share as

it may think right."

In my opinion, even assuming that the commander of the

Rush was not "duly commissioned and instructed" to seize

the schooner, and even though the commander of the

Quadra to whom she was first delivered is not an officer

who can take proceedings against her under said section

103, yet seeing the fact is that she has been brought for

adjudication before, and is now before this Court (and in

the custody of its marshal) by and at the instance of an offi-

cer. Commander Allgood, E. N,, who admittedly is within

said section 103, and who claims her condemnation for con-

travention of the Behring Sea Award Act, it is not open to

her owners to answer that charge (whatever other remedies

they may have) by setting up irregularities in the manner

in which she was originally seized or in the means whereby

she was ultimately brought within the jurisdiction of this

Court, and, later, before it by Commander Allgood, who in-

structed the writ to be issued on the 29th of November, as

appears by the indorsement thereof. According to the

principle decided in The Annandale (1877), 2 P. D. 179, the

forfeiture here accrued at the time the illegal act was done,

and I am unable to agree that any of said antecedent irreg-

ularities can affect the admittedly regular proceedings in

this Court.

The result is, therefore, that I find there has been a con-

travention of the Behring Sea x\ward Act, 1894, in the man-

134 The Favourite.

nov aforesaid, by the schooner Cayhrhd G. Cox, and I there-

fore declare her .ind her eciiiipment and everj'^thing on

l)oard of her to l)e forfeited to His Majesty, but, following

the precedent established in Re Ainoka (1896), 5 B. C 168,

and The Beatrice, ib., 171, in case of payment of a fine of

£400 and costs within 30 days she, her equipment, and

everything on board of her may be released.

Thongli I have come to this conclusion yet I think it

proper to observe that I have not overlooked the strong

a[)peal of the defendant's counsel that this Court should

now cast a lenient eye upon these infractions of theBehring

Sea Award Act, 1894, since, it is contended, the facts proved

in the course of the hearing shew that it has failed of its

object and not only i)Iaces the citizens of Canada at a dis-

advantage in their commercial enterprises in adjacent

waters, but offers special inducements to foreign sealing

vessels from c. g., the other side of the Pacific. But how-

ever strong a case such facts may found in diplomatic cir-

cles for a change in the Act, or other redress, they can have

no weight in a court of justice ; the sole duty of a judge is to

administer the law as it is given to him by that Legislature

which has the power to enact it, and therefore I have im-

posed a penalty as though there had been no change in the

condition of affairs since 1894.

Judgment for plaintiff.

•JL.


EXHIBIT 33.

Opinion of the Court in the Case of the Shelby.

(5 Exchequer Reports of Canada, p. 4.)

Judgment in full (Nov. 17, 1895).

Davie, G. J. L. J., now (Nov. 15tli, 1895,) delivered judg-

ment :

—

The British vessel Shelhij, Christian Claussen, master,

was seized by an officer of the U. S. S. Corivin on the 11th

May, 1895, in latitude 52° 52' 10'' north and longitude 134°

10' 58" west, being a point within the prohibited waters of

the Pacific Ocean as defined in the Behring Sea Award Act,

1894, for an alleged contravention of the Act, such contra-

vention being the emplojonent of the vessel in pursuing

seals within the proscribed waters during the period pro-

hibited by law.

By force of the scheduled provisions of the Behring Sea

Award Act, 1894, which under section 1 are to have the

same effect as if enacted by the Act, the pursuit of seals

within the aforesaid limit is prohibited, and by subsection

2 of section 1, if there is any contravention of the Act, any

person committing, iirocuring, aiding or abetting such con-

travention is guilty of a misdemeanor, and the ship em-

ployed in such contravention and her equipment, and every-

thing on board thereof, are lial)le to forfeiture to HerMajesty: provided that the court, without prejudice to any

other power, may release the ship, equipment or thing ou

payment of a fine not exceeding £500.

At the time of her seizure the Shelby was fully mannedand equipped for killing, capturing and pursuing seals, and

had on board implements and seal skins.

By section 1, subsection 6, of the Seal Fishery {North

Pacific) Act, 1893, whi'^h Act was in force at the time of the

13!) The F(t roil rife.

seizure, if, duriiii;- proliibitod times and in i)roliibited

waters, a British ship is found having on l)oard thereof fish-

ing and shooting implements or seal skins, it shall lie on the

owner or master of such vessel to prove that the ship was

not used or employed in contravention of the Act. The Acts

of 1893 and 1894- being in pari materia are to be read as one

Act. {McWilliams v. Adams, 1 Macq. H. L. Cas. 120.)

The Shelby, therefore, having been found within prohib-

ited waters with seals and imp](Miients for taking them on

board is to be deemed to have been employed in contraven-

tion of the Act unless the contrary be shown.

Has it then been shown that the ship was not used or em-

ployed in contravention of the Act? The most important

witness to prove this, if such were the case, would clearly

have been Captain Claussen, the master; but he was not

called, nor has the failure to call him been satisfactorily ac-

counted for. The only reason offered for his absence is that

he was away on a fishing expedition. His evidence might

have been taken de bene esse, but no effort to procure his

evidence seems to have been made. The mate, August Rep-

pon, was called as a witness, and stated that the Shelby

stopped sealing on the 30th April, when the ship 's log shows

the vessel to have been in latitude 58° 30' north and longi-

tude 139° 30' west, and that she then set sail for Victoria.

On the 11th of May, after 10 or 11 days' sailing, she was

found by the Corivin in latitude 52° 52' 10" north, and longi-

tude 134° 10' 58" west, a distance approximately of four

hundred miles from the point of starting, or less than an

average of 40 miles a day. The proper course for the ship

to have steered for Victoria was E. S. E. magnetic, but it

appears that frequently when the course of the wind as in-

dicated by the log would have permitted that course to be

made good the vessel was not headed in Ihat direction. For

instance, on 2nd of May she was headed on a southerly

course; on May 3rd on" a south by west course, and on the

5th of May on an east by north course, whereas the wind on


eacli of these days was favourable to an east-south-east

course. Captain Moggridge states, from an examination of

the log, that the schooner ought to have made a considerably

greater distance on her course during these days ; and in

view of the fact, as stated in evidence, that the Shelby had a

favourable current of nearly a knot an hour, it is clear that

she ought to have ma,de a much greater distance. The Cor-

win, in coming from the south to the point where she picked

up the Shelby, experienced strong head winds, which were

favourable winds for the Shelby, and the prevailing winds

at that time of the year, as shown by the "Coast Pilot," are

westerly, also favourable to the E. S. E. course to be madeby the Shelby.

The Cone in seized the Shelby for contravention of the

Act, placed a crew on board her and ordered her to Sitka,

a distance of 260 miles, which she reached under sail in a

little over two days. At Sitka the Shelby was ordered to

Victoria, a distance of about 800 miles, as shown by the

chart, which place she made, likewise under sail, in four-

teen days.

The mate, when asked to explain why he went out of his

course, particularly on the 2nd, 3rd and 5th of May, as-

cribes the fact to defects in the compass, which he says

varies three or four points, but this statement is shown byhis own evidence to be an equivocation, and the variations

to have had no effect whatever on the course actually madeor intended to be made, for whilst it is true that the compass

varies, and varies considerably, such variation is regular,

known precisely, and duly allowed for. Having conunitted

himself on his examination at the hearing to the variation

of the com])ass reason, which he was compelled to admit oncross-examination was no reason at all, he was by permis-

sion of the Court recalled a day or two after the evidence

had been closed, and he then ascribed the deviations fromi

the course to the state of the wind.

I find myself entirely unable to place any dependence on

the evidence of the mate, Reppon, and this leaves the devia-

138 The Favourite.

tions t'roiu tlie r(\2:nlar course between the 1st to the 11th

May, and tlu' i'act that 400 miles oiil\- was made in ten days,

altogether unaeconnted i'or. it is Irue that Denny Florida,

hunter, August Sehone, the cook, and Victor Emanuel Laer-

quest, one of the seamen, all testify, and I have no doubt

with truth, that no seals were taken during these days, nor

were the boats lowered ; but it appears also that none were

seen during these days, Tlieir evidence leaves the question

of deviations from the course untouched; and, in the ab-

sence of evidence explaining it, the only reasonable conclu-

sion is that the deviations were occasioned by the attempt to

pursue seals. At all events it has not been proved to mysatisfaction that the vessel was not employed in the pursuit

of seals during these dates. In The Queen v. The ship Min-

nie, (4 Ex. C. R. 151,) it was held by Crease, J. that the

presence of the shi]) within ])rohibited waters required the

clearest evidence of bona fides to exonerate the master of

any intention to infringe the provisions of the Act, and that,

as his explanation of the circumstances in that case was

unsatisfactory the ship must be condemned. This ruling is,

T think, in tliorough accord with subsection G of section 1,

and 1 am bound to follow it. It applies exactly to this case.

Here the captain has offered no explanation at all, and the

explanation of the circumstances, suspicious in themselves,

given by the mate, is unsatisfactory. The vessel, therefore,

must be condemned.

1 am iiK'lined to think that this is a case, as no actual

taking of seals is shown, but negatived ui»on the evidence,

where a fine might meet the justice of the case, instead of

forfeiture. I have i)ower under subsection 2 of section 1

of the Act of 1894 to substitute a fine for forfeiture. I will

hear counsel u])on this point. The costs of suit must follow

the condemnation.*


* By a suhsoquent order a fine of £100 sterling was substituted for the for-

feiture.

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American and British claims arbitration. The 'Favourite ......AnsweroftheUnitedStates. 3 ernmeutwouldstillbeliableforthedetentionoftheFa- vouritefromandafterAugust27,1894,thedatethevessel